The NPR Politics Podcast - Biden Won't Face Charges For Keeping Classified Documents

Episode Date: February 9, 2024

The Justice Department will not charge President Biden for willfully holding onto and disclosing classified materials after leaving the Obama Administration and becoming a private citizen. In a nearly 350-page report, the special counsel says the evidence did not establish Biden's guilt beyond a reasonable doubt but did raise the question of the president's mental acuity. This episode: political correspondent Susan Davis, senior White House correspondent Tamara Keith, and justice correspondent Ryan Lucas.This podcast was produced by Jeongyoon Han, Casey Morell & Kelli Wessinger. Our editor is Erica Morrison. Our executive producer is Muthoni Muturi. Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover politics. I'm Ryan Lucas. I cover the Justice Department. And I'm Tamara Keith. I cover the White House. And it is 5.18 p.m. on Thursday, February 8th, and this is our second episode today. There's another episode already in your feeds breaking down the arguments at the Supreme Court earlier today in the elections case challenging Donald Trump's appearance on the ballot in Colorado. But just hours after we taped that, Special Counsel Robert Herr released his report on the investigation into President Biden's handling of classified documents after leaving the vice presidency back in 2017. The conclusion of the report, while Biden did knowingly retain classified documents, he will not face prosecution. Ryan, before we get into the details of the report,

let's just back it up for a minute and remind us what prompted the special counsel investigation in the first place. Well, some of Biden's aides back in November of 2022 were packing up boxes, going through boxes at the offices of Biden's think tank down near the Capitol and came across some classified materials or what they thought was. And that is what ultimately was the trigger for all of this. The Justice Department ended up investigating in January of 2023. A special counsel, Robert Herr, was appointed. He has been investigating it for the past year. And now we have his 300 and nearly 50 page report on his

findings from his investigation. So what are the documents in question and what exactly did Biden do with them? Well, there are kind of two buckets of documents in particular that her focus is on. One is documents related to Afghanistan, foreign policy documents. And the other one is kind of the more interesting one to me. And those would be notebooks in which Biden kept handwritten notes from meetings at the White House, in the situation room, intelligence briefings with Obama about national security and foreign policy matters, stuff that of course would be sensitive national security stuff. And what Herr's report says is that in the case of the notebooks, Biden, not only did he have these materials, he disclosed classified information from these notebooks. He read on at least three occasions, the report says, segments almost verbatim from

these notebooks to his ghostwriter as they were working together on a memoir. Tim, legally, this is vindicating for President Biden. It says not only would they not charge him with a crime, but they would do so even if not for standing Justice Department guidance that says you cannot prosecute a sitting president. But politically, there's a lot of damning passages in here when it comes to how the special counsel frames the president's mental fitness. Right. There is this line that if they were to try to make this case to a jury, that President Biden would present himself as a, quote, sympathetic, well-meaning elderly man with a poor memory. Yeesh. As you might expect, Republicans have seized on this already.

Of course they have, including the Speaker of the House, Mike Johnson, who along with House Republican leaders released a statement saying, a man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office. And you're getting a lot of that from people like former President Trump, his supporting super PAC, et cetera, et cetera. This is something that feeds into a problem that President Biden has, that he is not getting younger. Every day he gets older. He can't control that. And there is a public perception that he's not all together with it. Now, the White House pushes back on that very strongly. And in their response to the special counsel that they filed with the special counsel, they say that he shouldn't be talking about this, that this is sort of overreach.

And also that these interviews that took place with the special counsel happened over two days, two days that were very intense where the president was dealing with a foreign policy crisis. It was October 8th and 9th. It was the two days after the October 7th Hamas attack on Israel. He was on the phone at all hours and then he was doing these interviews with the special counsel. I think there are a couple of points that I want to make off of what you said there, Tim. One is it's important to remember that Biden did cooperate with the special counsel's investigation. He sat for an interview, as you said. They also consented to searches of his home in Wilmington, Delaware, his beach home in Rehoboth offices. There was a lot of cooperation, which, and I'm sure that we'll get to the differences, the distinctions between the Biden investigation and the Trump investigation

involving classified documents. The other thing that I would say is that it's important to understand kind of why her talks about Biden's mental state at all. And part of it is we have this conclusion that Biden willfully retained classified information and disclosed classified information. And this comes up in the context of her explaining why he says charges are not warranted here. And part of it is the evidence doesn't establish Biden's guilt beyond a reasonable doubt, but he's talking about trying to convince a jury of the charges that he would have to bring.

And part of it is Biden's a sympathetic figure. He's a sympathetic older gentleman and people would find him believable. Right. I totally get the point that willfulness has a legal element to it. And you have state of mind matters when you talk about someone committing a crime. But damn, again, to the point of the politics of this, I found parts of this report to be really pointed how they make a point to note that Biden seemed confused at years that he served as vice president of the United States. And frankly, one of the cringiest lines in there is when they say he did not recall the date of his son's death.

And this kind of stuff has already been. And this specifically seems like it's clearly going to be fodder that's used to continue to attack Joe Biden. Well, and, you know, in a fundraiser yesterday, he confused German chancellors like this is something that happens and that that Biden's opponents have been drawing attention to and that Biden's supporters cringe at and worry about. And this is absolutely going to be something that the Biden campaign and Biden allies have to try to figure out how to combat. Part of what they are saying is, hey, how many times could Donald Trump not recall something in a deposition? Hundreds of times. And who knows? We could end up seeing a supercut of that pretty soon. All right. Let's take a quick break and we'll talk more about this when we get back. And we're back. And Ryan, let's talk about a question that I think a lot of voters and in particular Trump supporters are going to have about the conclusion of this report is that Donald

Trump, unlike Joe Biden, is facing criminal charges for retaining classified documents after leaving office at his home at Mar-a-Lago. He has been charged with a crime and he is facing trial. What is substantively the difference between these two cases? Well, I found it interesting that Herr and his report actually addresses this matter directly. And we've talked about it before, but looking at what special counsel Herr had to say, he pointed out that Trump was given multiple chances to return the classified documents that he had at Mar-a-Lago. According to the indictment, he refused to do so. And he's also charged with actively trying to obstruct the investigation, with trying to get others, his co-defendants, to destroy evidence.

That is distinctly different from Biden's behavior with the Herr investigation. And Trump allegedly tried to get his lawyers to mislead the Justice Department about documents. President Biden did the exact opposite. He did the opposite. He sat down for an interview himself at the White House with Herr. He turned over the documents as soon as they were found at his office. They alerted the National Archives. The Justice Department was informed and they opened the home, the office, his vacation home to the FBI so that they could come in and look and see if they could find any more classified documents and take them home. Now, I think it's also worth pointing out that former Vice President Pence also had classified documents found at his home. He cooperated with investigators and he didn't face criminal charges either. But former President Trump is already calling this a two-tiered justice system,

which brings back echoes of I don't know how many other times he has called things a two-tiered justice system. But it goes way back, at least to 2016. To be clear, it does not take this case for him to make that accusation. He's been making that allegation for a long time. And the counter to that, not just in the context of Biden's handling of classified documents and Trump's handling of classified documents, worth pointing out that the Justice Department refutes those allegations. And you can point out that Hunter Biden, President Biden's son, has been charged. He's facing federal charges in Delaware as well as California. Senator Bob Menendez, Democrat of New Jersey, is also facing federal criminal charges.

Not for the first time. So that's the pushback that the Justice Department and certainly supporters of the president will make to these allegations of a two-tier justice system. Ryan, remind me what the latest is on the timing in the classified docs case. It's still going to be a while before it's even taken up. That is tied up in pretrial litigation. It is still currently on the schedule to start in May, but there is nothing suggesting that it will actually go to trial in May. Tim, all of this is something we said in the podcast, but I think we got to keep reminding people this because I think there has been an expectation from a lot of voters that there might be neat, satisfying conclusions to the Trump trials before the election.

And it's quite possible some or not all of them are decided before that. And voters are going to have to make a choice without knowing ultimately what the courts might rule in these cases. Right. There have been trial dates on calendars and they have been erased and crossed out because, you know, part of Trump's strategy, part of his legal strategy is delay, delay, delay. And they've been quite successful at that. And the reality is that even if there is a verdict in one of these cases, if there is a conviction, there will be appeals. Certainly polling indicates that some share of voters would be turned off by a conviction, but another share would not be turned off. And I don't think anybody should have any expectation that this is going to be a year that gives us closure on much of anything. leave it there for today. But again, there is another podcast in your feeds where we break down the arguments before the Supreme Court today and the elections case challenging whether Donald Trump can appear on the ballot in Colorado. I'm Susan Davis. I cover politics. I'm Ryan Lucas. I cover the Justice Department. And I'm Tamara Keith. I cover the White House. And thanks for

listening to the NPR Politics Podcast.