President Biden's handling of three sets of documents were investigated, there were three different time frames scrutinized, two locations deemed relevant, two issues explored, and one standard of proof to be measured against if charges were to be brought after President Biden left office.
The documents were: a Thanksgiving 2009 memo written by Biden and sent to President Obama on the Afghanistan "surge" along with supporting classified documents; Biden's notebooks from the time of his vice presidency; Biden's notecards from his vice presidency.
The time frames are his eight years as vice president, his now three years as president, and the four year interregnum between offices, of which one year, 2017, is a focus.
The locales are his Delaware home and a home in Virginia that he rented in 2017.
The issues are retention of classified documents and disclosure.
The standard of proof is beyond a reasonable doubt for any charges after President Biden leaves office.
Biden had a right under law to keep classified documents at his home during the years he served as vice president and president. Thus the subject of scrutiny was any classified material, known and believed to be such by Biden, that could be placed beyond a reasonable doubt at either home during Biden's interregnum as a private citizen. Separately but relatedly if any classified material was disclosed to unauthorized persons.
The Special Counsel found that the Afghanistan documents, clearly marked as classified, Biden's personal notebooks, not marked as classified but containing some classified material, were classified, and were kept by Biden both during his times in office and in the interregnum at his home in Delaware, or at his rented home in Virginia, or at the Penn Biden Center or at University of Delaware. Biden's notecards were sent by his staff to the Secure Compartmented Information Facility (SCIF) at the National Archives. Biden disagreed with his staff that the notecards were required to be stored at the SCIF. Biden executed his disagreement by keeping his notebooks.
The Special Counsel determined that he could not prove willful retention of classified material beyond a reasonable doubt for several reasons:
One, Special Counsel could not prove beyond a reasonable doubt that Biden knowingly retained classified material in his private residence when he ceased being vice president in 2017.
Two, Special Counsel could not prove that Biden knowingly had his staff move material he, Biden, knew to be classified from his office when vice president to his private home in Delaware.
Three, the same lack of proof beyond reasonable doubt when staff moved Biden’s effects to temporary residence in Virginia in 2017.
Four, ambiguity in practice and precedent over what was classified material. Special Counsel cites President Reagan’s retention of his diaries made during his White House years. The Department of Justice ruled then that Reagan’s diaries were “personal records” not classified documents. The Reagan precedent was also cited by President Biden in his interview with Special Counsel.
The Reagan precedent also applied to the issue of Biden’s disclosure to his ghostwriter. Reagan turned his diaries, with classified material, into a book. Biden disclosed entries from his notebooks to his book ghostwriter.
The first two sentences of the Report's Executive Summary:
We conclude that no criminal charges are warranted in this matter. 1 We would
reach the same conclusion even if Department of Justice policy did not foreclose
criminal charges against a sitting president. 2
