“What Did The President Know And When Did He Know It?”

NEW

The Real “Robert Hur Report” (Versus What You Read in the News)

How the Special Counsel report has been misinterpreted

By @AWeissmann_ and @rgoodlaw #HurReport #mediahttps://t.co/GdBae5ksYD

— Just Security (@just_security) February 10, 2024

A crime generally requires more than action, and in the case of possessing classified documents, it requires knowledge. This distinction was lost on the press, but not on the special counsel staff who wrote the report:

Some of the documents in these files were marked classified, though, because of the passage of time, we do not know whether Mr. Biden willfully retained the classified documents or consulted them when writing the book.” (p. 170) 

“We were limited in our ability to investigate these documents because of the significant passage of time since their creation. Although we cannot prove that Mr. Biden retained these classified documents willfully or used them in writing Promises to Keep, he did write about the foreign trips that were the subject of the documents.” (p. 177)  

“[T]hree notebooks found in Mr. Biden’s Delaware home had marked classified documents placed inside them. One of these notebooks, labeled “Af/Pak 1,” is discussed in Chapter Six. For the other two, the evidence does not suggest either that Mr. Biden retained the classified documents inside them willfully, or that the documents contain national defense information.” (p. 326) 

“Several defenses are likely to create reasonable doubt as to such charges. For example, Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not retain them willfully …. And the place where the Afghanistan documents were eventually found in Mr. Biden’s Delaware garage-in a badly damaged box surrounded by household detritus-suggests the documents might have been forgotten.” (p.4)  

“It is possible that Mr. Biden encountered the classified Afghanistan documents at the Virginia home in February 2017, told Zwonitzer about them, and then, soon after, forgot about them and did not willfully retain them.” (p. 205) 

“There is some indication that Mr. Biden’s staff may have advised him that his notecards contained classified information and needed to be held in a secured location. But the investigation did not determine what, if anything, Mr. Biden’s staffers actually told him on this subject.” (p. 65) 

“For each of the marked classified documents found in Mr. Biden’s notebooks, we cannot prove that Mr. Biden knew about or intended to keep the document after he was vice president, or we cannot prove the document contains national defense information, or both. These documents do not support criminal charges against Mr. Biden.” (p. 329)

And if you’re thinking about the motion to dismiss in the grounds of selective prosecution Trump just filed in Florida, maybe his lawyers should read the report, too. A grand jury found Trump knowingly and willfully retained those documents. A special prosecutor found there were innocent explanations for what Biden did. And prosecutions are always supposed to be based on the facts.

Or, if you prefer, compare and contrast:

But another inference the evidence permits is that Mr. Biden returned the binder of classified material to the personal aide because, after leaving office, Mr. Biden did not intend to retain any marked classified documents. As Mr. Biden said in his interview with our office, if he had found marked classified documents after the vice presidency, “I would have gotten rid of them. I would have gotten them back to their source…. I had no purpose for them, and I think it would be inappropriate for me to keep clearly classified documents.” Some reasonable jurors may credit this statement and conclude that if Mr. Biden found the classified Afghanistan documents in the Virginia home, he forgot about them rather than willfully retaining them.” (p. 206) 

“Many will conclude that a president who knew he was illegally storing classified documents in his home would not have allowed a search of his home to discover those documents and then answered the government’s questions afterwards. While various parts of this argument are debatable, we expect the argument will carry real force for many reasonable jurors. These jurors will conclude that Mr. Biden–a powerful, sophisticated person with access to the best advice in the world would not have handed the government classified documents from his own home on a silver platter if he had willfully retained those documents for years. Just as a person who destroys evidence and lies often proves his guilt, a person who produces evidence and cooperates will be seen by many to be innocent.” (p. 210)

Not exactly the same actions Trump is alleged to have taken.