Biden hits back at special counsel report questioning his memory

Investigation concludes US President 'wilfully' kept classified papers, but no charges are brought forward

US President Joe Biden speaks about the special counsel report at the White House in Washington. AFP

US President Joe Biden on Thursday defended his fitness to serve in office after a special counsel included remarks about his memory capacity in a report concluding an investigation into his handling of classified documents.

"My memory is fine," he told reporters in a last-minute evening White House press conference.

"Take a look what I've done since I've become President. Nobody has thought I could pass any of the things I got passed."

A special counsel appointed by the US Justice Department ruled that “no criminal charges are warranted” for Mr Biden's possession of classified documents, given the difficulty to prove intent to break the law.

In his report, publicly released earlier on Thursday, special counsel Robert Hur referred to Mr Biden‘s “significantly limited” memory, which Mr Biden's lawyers argued was "inaccurate and inappropriate" to include.

“Our investigation uncovered evidence that President Biden wilfully retained and disclosed classified materials after his vice presidency, when he was a private citizen,” the executive summary read.

“We conclude that the evidence does not establish Mr Biden's guilt beyond a reasonable doubt.”

Attorney General Merrick Garland appointed Mr Hur to investigate any criminal wrongdoing in Mr Biden's retention of sensitive government documents after his time as vice president to Barack Obama.

"I would take responsibility for not having seen exactly what my staff was doing," Mr Biden said.

"I was pleased to see reached the firm conclusion that no charges should be brought against me in this case," he said, later adding: "I did not break the law."

Yet, as charges were not recommended against Mr Biden, the focus quickly shifted to Mr Hur's non-medical interpretation of the President's memory in his final report.

There have been concerns about Mr Biden, 81, the oldest president in US history, and his mental capacity to serve or run for re-election. Voters have also increasingly raised the topic of his age as an issue.

For example, he has repeatedly muddled up the names of world leaders. In the past week, he has confused the late German chancellor Helmut Kohl with former chancellor Angela Merkel, and French President Emmanuel Macron with former French leader Francois Mitterrand, who died in 1996.

And in the hopes to assuage concerns about his memory, Mr Biden mistakenly referred to Egyptian President Abdel Fattah El Sisi as the leader of Mexico during the press conference on Thursday.

However, Democrats and lawyers questioned why the special counsel felt compelled to include views on his memory in a legal report.

"The bottom line is that the matter is now closed," Mr Biden said.

He said that he co-operated with the special counsel's team, including five hours of interviews.

It is a contrast to charges that former president Donald Trump is facing over possession of classified documents after his presidency ended in 2021, and obstruction in not returning them to authorities when requested.

Mr Hur said the sensitive documents Mr Biden had held included information about military and foreign policy in Afghanistan, with classification markings as high as “top secret” and “sensitive compartmented information”.

They were discovered in a box in Mr Biden's home garage in Wilmington, Delaware, during an FBI search in 2022.

An image in the report from special counsel Robert Hur shows the cluttered garage of President Joe Biden in Wilmington, Delaware, during a search by the FBI. AP

Mr Hur's team discovered that Mr Biden had told a ghostwriter for his book that he had “just found all the classified stuff downstairs” while at a rental house in Virginia in 2017.

“The marked classified documents were found along with drafts of the handwritten 2009 Thanksgiving memo Mr Biden sent President Obama in a last-ditch effort to persuade him not to send additional troops to Afghanistan,” the report said.

“These materials were proof of the stand Mr Biden took in what he regarded as among the most important decisions of his vice presidency.”

The documents labelled "top secret" and "SCI" are deemed damaging to US national security if people not allowed to view them had access. SCI-marked documents are supposed to only be held and viewed in approved facilities.

Mr Hur deduced that the President most probably forgot about the documents or that they were “stored by mistake and without his knowledge”.

While Mr Biden did not have the authority to keep classified documents at the rental Virginia home, he did have the right to do so at his Delaware home during his vice presidency and current presidency.

Mr Hur said it would be difficult to prove the President's intent to break the law due to a "shortage of evidence" and Mr Biden's “significantly limited” memory.

“Mr Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” the report said.

“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt.

“It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of wilfulness.”

On completion of the report, the White House decided not to redact the text before releasing it.

However, Mr Biden's lawyers wrote in a letter that the comments about his memory were "gratuitous" and requested that Mr Hur "revise" them before the report's release.