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Fact-checking claims about what special counsel report said about Biden

President Joe Biden speaks in the Diplomatic Reception Room of the White House Feb. 8, 2024, after a special counsel's release of a report into Biden's handling of classified documents. (AP)

By Jeff Cercone February 12, 2024

If Your Time is short

Special Counsel Robert Hur, in his report on President Joe Biden’s handling of classified documents, didn’t call Biden a criminal. Nor did he say Biden was incompetent for trial or mentally unfit for office.
Hur found evidence that Biden willfully retained classified documents. Hur declined to prosecute, saying a conviction was unlikely for several reasons, including that jurors might be sympathetic to a “well-meaning elderly man with a poor memory.”
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Special counsel Robert Hur on Feb. 8 released his long-awaited report into President Joe Biden’s handling of classified documents. Social media users then parsed Hur’s words from the report to make unfounded claims about the report’s conclusions.

Hur said in his report he declined to prosecute Biden, but noted there was evidence Biden willfully retained classified documents. The report’s contents also touched off a primetime news conference in which Biden defended himself from Hur’s many descriptions of Biden’s faulty memory.

We fact-checked some of the claims.

"DOJ says Biden is unfit and (too) incompetent to stand trial."

— Feb. 9 Instagram post

"Federal government declares Biden mentally unfit for office, senile in damning report."

— Benny Johnson, Feb. 8 Facebook post

These characterizations are inaccurate.

Hur’s report made several references to Biden’s "poor memory," writing that his memory "was significantly limited" during interviews with the special counsel. Hur cited that as one reason he declined to prosecute the president.

Hur wrote about Biden’s "diminished faculties and faulty memory" and said Biden couldn’t remember when he was vice president or the year his son Beau died. The president denied these allegations.

Neama Rahmani, a former federal prosecutor who is now president of West Coast Trial Lawyers, said the report did not declare Biden unfit or incompetent to stand trial.

"Incompetence is a legal term and means a criminal defendant does not understand the nature of the proceedings and is unable to assist in his or her defense. That is not what Hur said," Rahmani said. "Nor did Hur address Biden's suitability to hold public office. It would have been inappropriate for him to do so."

Ric Simmons, an Ohio State University law professor, agreed the special counsel never said Biden was incompetent to stand trial or unfit for office.

"It said that a jury might be sympathetic to him because of his age and that his memory issues might make it harder to prove all the elements of the crime," Simmons said.

The report also never said Biden was mentally unfit for office, Simmons said.

"The special counsel would have no way of ascertaining this," he said.

Simmons said the report also did not use the word "senile," despite its many references to Biden’s memory.

"This might fit in with some definitions of ‘senile,’ which is defined as a loss of mental functions due to old age, but it does not fit the usual connotation of senility, which is an inability to perform basic mental tasks," Simmons said.

Special Counsel Robert Hur, seen here when he was a U.S. attorney in Baltimore in 2019, released a report Feb. 8, 2024, into President Joe Biden's handling of classified materials. (AP)

"Based on findings from his Justice Department, Joe Biden is identified as a criminal not suitable for trial."

— Feb. 9 Instagram post

The report neither identified Biden as a criminal, nor exonerated him.

Hur suggested Biden might have committed a crime, writing, "Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen."

The report referred to documents related to Afghanistan and to handwritten notebooks from Biden’s time as vice president. But Hur declined to prosecute, saying "we conclude that the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt."

Simmons said although the report said there was sufficient evidence to charge Biden with a crime, Biden wasn’t identified in the report as a criminal.

"A prosecutor never ‘identifies’ someone as a criminal. They merely bring charges if they think there is sufficient evidence to convict," Simmons said.

Hur wrote that getting a conviction would face several hurdles:

Because the documents in question are almost 15 years old and about Afghanistan, a conflict that has ended, Biden’s defense would strongly question whether they still contained sensitive national security information.
Biden was allowed to have the documents in his home while he was vice president through 2016 and again as president. "It may be difficult to convince a jury they should care" about his "brief illicit possession of documents," Hur wrote.
Biden would likely present himself to a jury as "a sympathetic, well-meaning elderly mean with a poor memory." It would not be easy persuading a jury to convict him of a serious felony "that requires a mental state of willfulness," Hur wrote.
Biden’s cooperation with the investigation would likely cause some jurors to think he kept the documents by mistake.

Because the government was unlikely to get a conviction at trial, "we decline prosecution," Hur wrote.