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Biden retained classified information but will not face charges, special counsel report says

The justice department special counsel investigating Joe Biden’s handling of classified documents has released a report concluding Biden took classified information about the US war in Afghanistan and other national security matters, but he will not face criminal charges.

The documents included a handwritten memo to then president Barack Obama in 2009 opposing a planned troop surge in Afghanistan and handwritten notes related to intelligence briefings and national security meetings, the report by special counsel Robert Hur found.

The year-long investigation centered on the improper retention of classified documents by Biden from his time as a senator and as vice-president to Obama.

The release of the report is likely to play into the US’s bitterly contested 2024 election, with Republicans poised to jump on any criticism of the US president. Donald Trump is also being investigated for improperly holding on to classified documents at his Mar-a-Lago resort in Florida.

In a statement, Bob Bauer, Biden’s personal counsel, said: “It was plain from the outset that criminal charges were not warranted.”

Sensitive records were found in 2022 and 2023 at Biden’s Delaware home and at a private office that he used between his service in the Obama administration and becoming president.

The investigation came amid a wider justice department inquiry into classified documents that has led to charges against Trump, who is accused of unlawfully retaining highly classified documents after he left office and refusing to hand them over to federal officials when demanded.

According to Hur’s report, Biden told a writer working on his memoir during a February 2017 conversation at a home he was renting in Virginia that he had “just found all the classified stuff downstairs”.

Hur’s report said the conversation created “the best case” for charges against Biden.

But Hur identified several reasons why he did not charge Biden, including that the documents may have been taken to his home while he was vice-president, when he had the authority to keep such documents.

Hur said Biden would not have faced charges even without a longstanding justice department policy against indicting a sitting president and that he believed a jury would be unlikely to convict him, especially given any trial would have to take place when he left the White House.

“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt,” the report said. “It would be difficult to convince a jury that they should convict him – by then a former president well into his 80s – of a serious felony that requires a mental state of willfulness.”

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Hur, a Republican who served in senior roles at the justice department during the Trump administration, was appointed in January 2023 to oversee the investigation into Biden’s handling of the documents.

The attorney general, Merrick Garland, who was nominated by Biden, put Hur in charge of the investigation to give the probe a degree of independence from the leadership of the justice department.

Previously, the White House counsel’s office spokesperson Ian Sams has said it had completed a review of the report and not requested any redactions to its contents.

However, Bauer did take a swipe at Hur’s report and his investigation, accusing the special counsel of “investigative excess” in the length and breadth of the investigation and the type of evidence it looked at.

Bauer added: “Based on the facts and the law, the Special Counsel in this case had no choice but to find that criminal charges were not warranted. He had other choices, which should have been guided by the Department’s rules, policies, and practices, and he made the wrong ones.”

The Associated Press contributed reporting

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