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Classified documents were found at the Penn Biden Center in Jan. 2023. Credit: Jesse Zhang

A United States Department of Justice special counsel declined to prosecute President Joe Biden despite evidence that he intentionally retained classified documents — some of which were at the Penn Biden Center.

Special Counsel Robert Hur submitted the report — made public on Feb. 8 — to Attorney General Merrick Garland on Feb. 5, after classified documents were first found in the Penn Biden Center on Nov. 2, 2022. The investigation, which began Jan. 12, 2023, yielded evidence that classified materials — including documents and Biden’s handwritten notes — were “willfully retained” after his vice presidency ended in 2017.  

A University spokesperson declined a request for comment. 

The 345-page report found that 44 pages of classified documents were found in the Penn Biden Center on Nov. 3, 2022 — some of which were classified as top secret. Other documents were found in Biden’s Delaware home and the University of Delaware. 

In addition, Biden, a former Penn Professor of Presidential Practice, appeared to be aware of the existence of classified documents that were in his possession since 2017. In a recorded conversation with his ghostwriter for his 2017 memoir “Promise Me, Dad,” he mentioned that he had “just found all the classified stuff downstairs” — referring to a 2009 memo he wrote to then-President Barack Obama about Afghanistan — in a Virginia house he rented at the time. 

“Nevertheless, we do not believe this evidence is sufficient, as jurors would likely find reasonable doubt for one or more of several reasons,” Hur wrote. 

One such reason the report cited was that Biden may have genuinely believed his notebooks were categorized as personal property, despite evidence that he knew they contained classified information. 

Another reason the special counsel believed Biden was not willfully breaking the law — as would have been necessary to prove for an indictment — was due to his memory, which “appeared to have significant limitations,” even in 2017. In an interview with the special counsel, he could not recall several key dates, including the beginning and end of his term as vice president, and when his son Beau Biden had died. 

“Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well-meaning, elderly man with a poor memory,” the report wrote. “While he is and must be accountable for his actions — he is, after all, the President of the United States — based on our direct observations of him, Mr. Biden is someone for whom many jurors will want to search for reasonable doubt.” 

Biden’s legal team both praised the investigation’s conclusion and criticized specific assertions in the report. 

“As the Special Counsel report recognizes, the President fully cooperated from day one. His team promptly self-reported the classified documents that were found to ensure that these documents were immediately returned to the government because the President knows that’s where they belong,” Richard Sauber, Biden’s special counsel, wrote in a statement. “Not only was there no obstruction, the President’s cooperation throughout this 15-month investigation has been extraordinary.” 

Sauber and Bob Bauer — Biden's personal attorney — disapproved of the characterization of Biden's memory and criticized other aspects of the report in a Jan. 5 letter to Hur and Deputy Special Counsel Marc Krickbaum.

“We do not believe that the report's treatment of President Biden's memory is accurate or appropriate,” Sauber and Bauer wrote. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.” 

In remarks from the White House on Thursday evening, Biden expressed outrage at the mention of his son’s death in the report and the portrayal of his cognitive abilities. 

“For any extraneous commentary, they don’t know what they’re talking about,” he said. “It has no place in this report.” 

The Penn Biden Center officially opened in February 2018, and served as Biden’s main office in Washington after his term as vice president ended. In January 2023, The Daily Pennsylvanian reported on the discovery of classified documents at the Penn Biden Center, as well as allegations of foreign influence from multiple committees in the U.S. House of Representatives.