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For years, former President Joe Biden has fought to prevent the release of tapes acquired by former special counsel Robert Hur in his investigation. After those efforts collapsed this month, it became clear why Biden and his aides were so determined to keep the public from seeing the evidence.
In addition to showing Biden’s mental diminution even before he was elected president, the tapes show that Biden effectively confessed to the crimes Hur would later excuse on the grounds of his mental infirmity.
Biden’s interviews with his biographer, Mark Zwonitzer, conducted four years before he would be elected president, show that Biden was already having trouble remembering names and dates.
Hur was tasked with determining whether Biden had committed the same crimes that led later to charges against President Trump — retaining classified material, mishandling such material, and related crimes.
It turns out that Biden had already admitted to these alleged crimes, years before the documents were found in various offices and the garage of his home.
I wrote for years about Biden’s absurd denials after files were found in offices where he was working on his book. There was also evidence that the material had been divided, distributed, and transported between different locations.
Despite all the evidence of knowledge and use of the classified materials, Biden and his aides suggested that no one had been aware of its removal and repeated transfer. In the meantime, after the raid on Mar-a-Lago to search for classified material removed by Trump, the Justice Department granted Biden and his team every possible accommodation.
Then came the searches of his home, with the pictures of files in his garage, office, and other locations. These included clearly marked classified material.
Hur then issued his report, concluding that there was evidence of the crimes, but that he would still not charge Biden as Special Counsel Jack Smith had done with Trump. The report stated that “President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” It further stated that the clearly marked classified material was “stored in unsecure places” and posed a risk of “serious damage to America’s national security.”
For his part, Biden was defiant and, when confronted about the documents, insisted that “They’re mine,” and that other presidents had done what he did. This was the same president who condemned Trump for retaining classified information. Biden mocked Trump’s defense and asked CBS 60 Minutes how “anyone could be that irresponsible.”
We now know that Biden himself was that irresponsible, if not more so. Biden not only kept classified material longer and in even less secure locations, but he did nothing to protect the material even as he attacked Trump over Mar-a-Lago.
Nevertheless, Hur declared that he would not bring a single charge because Biden “would likely present himself to a jury, as he did in our interview of him, as a sympathetic, well-meaning elderly man with a poor memory.”
The tapes show Biden struggling to give answers even before he announced his candidacy for the presidency, despite denials from key aides such as Jen Psaki and Karine Jean-Pierre. However, Hur had actual tapes showing that Biden had clear meaning and knowledge of his retention of classified material. Combined with Biden’s later public statements, the combination would have been deadly at trial.
In the interview, Biden read “nearly verbatim” from notebooks containing sensitive national security and foreign policy information, according to Hur. On the tapes, Biden is heard saying, “So this was, I early on, um, in ’09 I just found all the classified stuff downstairs.” At another point, he states, “Some of this may be classified, so be careful with it.” He repeatedly mentions that some of the items in his office and home may be classified.
He even brags to his ghostwriter, in a report made on Oct. 10, 2016, that “I have extensive notes over this period of time … They didn’t know I have this.”
Once again, the Justice Department had already declared and defended in court the idea that such removal and retention of classified material did constitute a federal crime by a president, let alone a vice president. Where Trump acknowledged his retention of classified material and agreed to security measures that the FBI requested, Biden did not inform anyone of his classified materials and kept them in his garage long after the Mar-a-Lago raids. Meanwhile, in public, he expressed shock that any president would act as recklessly as Trump.
It is hard to see how any of that would present “a sympathetic, well-meaning elderly man with a poor memory.” It sounds more like a cynical, shrewd politician with poor ethics. It also sounds like it would have been a strong foundation for a prosecution.
For many, the tapes will reinforce the view of a two-tier legal system, long maintained by the Justice Department, whereby key Democratic figures including Hillary Clinton and Joe Biden were given favorable treatment while others were indicted for similar conduct.
What is truly galling for some of us is that Biden knew all of this when he went public to attack Hur for suggesting that he had knowingly retained classified material and showed diminished mental faculties— even forgetting when his son Beau died. Biden savaged Hur at the time for even raising this issue, famously demanding, “How the hell dare he raise that?” Even that was a lie, because it was Biden who had raised Beau’s death in the interview.
Even after the report, Biden was still denying that he had retained classified material, even though he had discussed that classified material with his ghostwriter years earlier and had admitted as much to Hur. But before the public, Biden declared, “I’ve seen headlines since the report was released about my willful retention of documents. This assertion is not only misleading, it’s just plain wrong.”
The record is now largely complete. So is the inescapable conclusion: Biden lacked clarity on most everything but his alleged crimes. His deception and culpability were established in both the Zwonitzer and Hur interviews. Biden gave Hur a virtual confession, and Hur gave him a pass.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
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