The decision on Thursday not to file criminal charges against President Biden for mishandling classified documents should have been an unequivocal legal exoneration.
Instead, it was a political disaster.
The investigation into Mr. Biden’s handling of the documents after being vice president concluded that he was a “well-meaning, elderly man with a poor memory” and had “diminished faculties in advancing age” — such startling assertions that they prompted a fiery and emotional attempt at political damage control from the president within hours.
Speaking to the cameras from the Diplomatic Reception Room at the White House, Mr. Biden on Thursday evening blasted the report by Robert K. Hur, the special counsel, accusing the report’s authors of “extraneous commentary” about his age and mental capacity.
“They don’t know what they’re talking about,” the president said flatly.
Mr. Biden appeared to take special exception to the report’s assertion that during interviews with F.B.I. investigators, he could not recall what year his son Beau died.
“How the hell dare he raise that,” the president said, appearing to choke back tears. “Every Memorial Day we hold a service remembering him attended by friends and family and the people who loved him. I don’t need anyone, I don’t need anyone to remind me when he passed away.”
The president’s remarkable appearance before reporters underscored the political damage that Mr. Hur’s report could do despite the lack of criminal charges. The report’s discussion of the president’s memory and age was repeated throughout the 345-page document, and was quickly seized on by Republicans, including Mr. Biden’s likely opponent in the 2024 election, former President Donald J. Trump.
In the report, Mr. Hur said the memory of the then-80-year-old president was so hazy during five hours of interviews over two days that it would be difficult to convince jurors that Mr. Biden knew his handling of the documents was wrong. Mr. Hur predicted in the report that if the president were charged, his lawyers “would emphasize these limitations in his recall.”
In part because of Mr. Biden’s memory, Mr. Hur declined to recommend charging the president for what the report described as willful retention of national security secrets, including some documents shared by the president that implicated “sensitive intelligence sources and methods.”
“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,” Mr. Hur wrote.
In his own written statement issued just after the report became public, Mr. Biden appeared to suggest a reason for why he was distracted.
“I was so determined to give the special counsel what they needed that I went forward with five hours of in-person interviews over two days on Oct. 8 and 9 of last year, even though Israel had just been attacked on Oct. 7 and I was in the middle of handling an international crisis,” he wrote. “I just believed that’s what I owed the American people.”
The president’s lawyers, Bob Bauer and Richard Sauber, took exception in a Feb. 5 letter with Mr. Hur’s description of the president’s memory.
“It is hardly fair to concede that the president would be asked about events years in the past, press him to give his ‘best’ recollections and then fault him for his limited memory,” the lawyers wrote. “The president’s inability to recall dates or details of events that happened years ago is neither surprising nor unusual.”
Concerns about Mr. Biden’s age have been a recurring theme of his presidency over the past three years. Fueled in part by video of the president appearing weak or stumbling in public, many voters have expressed concern about his mental and physical fitness as he seeks to remain in the White House until he is 86 years old.
Mr. Biden has tried to laugh off the issue, insisting that with age comes wisdom.
During fund-raisers on Wednesday, Mr. Biden twice recalled a 2021 conversation with Helmut Kohl, the onetime German chancellor, who died in 2017. His spokeswoman later said he misspoke, as many public officials do. In his remarks on Thursday evening, Mr. Biden confused the presidents of Mexico and Egypt, making exactly the kind of mistake that his staff would have wanted him to avoid at a time when his mental acuity is being questioned.
On Thursday, he angrily disputed the suggestion that he was not fit to serve. Asked about polls showing that the American people have concerns about his age, he pointed at the reporter and said: “That is your judgment. That is your judgment.”
He then added: “That is not the judgment of the press,” though he appeared to mean it was not the judgment of the public. Asked why he should not step aside and let someone else in his party be the Democratic nominee, he said, “Because I’m the most qualified person in this country to be president of the United States and finish the job I started.”
Mr. Biden’s aides have repeatedly insisted that despite how the president sometimes comes across in public, he remains sharp and tireless when he is in private, in discussions with aides or in meetings with foreign leaders.
But the report released on Thursday challenges those descriptions, not by relying on short snippets of Mr. Biden posted to social media but rather on hourslong interactions with the president in controlled settings. And the descriptions of his memory were more vivid than what is normally found in legal documents like the one released on Thursday.
In the report, Mr. Hur wrote that in a 2017 recorded conversation between Mr. Biden and the ghostwriter for his book, Mr. Biden struggled to “remember events” and was “straining at times to read and relay his own notebook entries.” Mr. Hur said that the interviews in 2023 with investigators were even worse.
“He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 — when did I stop being vice president?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still vice president?’),” the report said. “He did not remember, even within several years, when his son Beau died.”
Mr. Hur was nominated by Mr. Trump to be the U.S. attorney in Maryland, but was later chosen by Attorney General Merrick Garland to lead the investigation into Mr. Biden’s handling of classified documents.
Mr. Biden’s lawyers have been arguing for more than a year that the discovery of classified documents at Mr. Biden’s offices and Delaware home was no more than accidental oversight, and certainly not criminal behavior like the 37 felony charges brought against Mr. Trump for his handling of classified material after leaving office.
On Thursday, the special counsel came to the same conclusion after reviewing a total of seven million documents, a fact celebrated inside the White House and at the president’s re-election campaign headquarters, where aides are preparing to wage a fierce battle to prevent Mr. Trump’s return to the White House.
But the report refuted the longstanding argument by the president’s lawyers that Mr. Biden never put the nation’s national security at risk. Investigators found documents at Mr. Biden’s home in a “box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil and synthetic firewood.”
While concluding that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt,” Mr. Hur nonetheless wrote that Mr. Biden took classified documents and notebooks about Afghanistan with him in 2017 after leaving the vice presidency, and shared some of those documents with his ghostwriter.
The tough language by Mr. Hur could set the stage for Mr. Trump and his allies to launch a fresh round of political attacks on Mr. Biden for doing the very same kinds of things Mr. Trump is accused of doing. And it will probably complicate the monthslong effort by Mr. Biden and his advisers to draw sharp distinctions between the actions of the two presidents.
But the most searing political damage is likely to be about Mr. Biden’s age, which many veteran Democrats already believe is the president’s biggest weakness. Some have privately said they worried that something would come along to remind voters about the age issue, including the possibility of a fall or a mental stumble.
Republicans began using the report to attack Mr. Biden almost immediately, sometimes going much further than the prosecutor’s actual conclusions.
Senator Marco Rubio, Republican of Florida, said on social media, falsely, that “the special counsel decided not to bring charges against Biden because they believe he has age related dementia.”
In some ways, Thursday’s report was the worst of all worlds: an official description of Mr. Biden behind the scenes, suggesting that with age come stumbles.
First appeared on www.nytimes.com