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In a famous case from the 1990s, the mobster Vincent Gigante offered what became known as “the bathrobe defense.” He attended his arraignment in pajamas and a bathrobe and claimed to be mentally impaired. Regarding President Joe Biden’s misuse of classified documents, the country is now asked to believe the forgetful elderly man defense.
That’s likely to be the main public takeaway from special counsel Robert Hur’s 345-page report of his investigation into the secret documents Biden kept in various places. Hur reports that he “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” But he concludes that “no criminal charges are warranted,” in large part because he doesn’t believe a jury would convict “a sympathetic, well-meaning, elderly man with a poor memory.”
The report says Biden kept documents with classified markings about Afghanistan, an issue about which he had taken a particular interest during the Obama presidency. He also kept notebooks “implicating sensitive intelligence sources and methods” in his garage, offices and basement den.
Biden used these documents and notes to assist in writing his 2007 and 2017 memoirs, and he shared those secrets with a ghostwriter. Hur also discovered a recorded 2017 conversation in which Biden said to his ghostwriter that he “just found all the classified stuff downstairs.” Hur also makes clear that with his long experience in public life, Biden was well aware of the rules required to protect national secrets.
Yet while his report is scathing on the facts, it goes easy on the decision to prosecute. A sitting president can’t be prosecuted under longtime Justice Department rules, but Hur says he also wouldn’t have prosecuted without such a rule. The reason? He didn’t think a jury would convict beyond a reasonable doubt.
Hur says a jury might buy a potential Biden argument that a former vice president used to seeing sensitive material would find the random classified document in his house as “an unremarkable and forgettable event.” Or he might argue to a jury — as he did in his interview with prosecutors — that he honestly believed the notebooks were “my property.”