In a damning report, the special counsel overseeing the investigation into President Biden’s sloppy retention of classified documents, Robert Hur, says he will not pursue charges against the commander in chief because of his advanced age and lack of mental acuity. 

A jury, Mr. Hur argues, would never convict an “elderly man with a poor memory.”

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” Mr. Hur writes in his report to Attorney General Garland. 

Mr. Biden kept documents about foreign policy and national security in his garage and den at his Delaware home, his office at the nation’s capital, and at the Penn Biden Center at Philadelphia. The documents were shared with ghostwriters who lacked security clearance and who were writing Mr. Biden’s post-vice presidency memoir.

One of those documents was a classified memo he had written to President Obama in 2009 in which he described his opposition to sending additional American military forces to Afghanistan. Mr. Hur says that the president kept those documents for his memoir because he “believed history would prove him right.”

In one of the most damning sections of the report, Mr. Hur writes that the president was not worthy of prosecution because a jury would not be likely to convict a man of such an advanced age and declining mental abilities. He described his own appraisal of the president, whom he interviewed last year over the course of two days, as a man of limited cognitive function.

“We have also considered that, at trial, 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 special counsel writes. “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 willfulness.”

Mr. Hur even details an interview he had with Mr. Biden in which the president forgot details about his time as vice president, and even forgot when his son Beau had died. “When did I stop being Vice President?” Mr. Biden said in his interview with Mr. Hur, incorrectly stating at one point that he left office in 2013. 

Mr. Hur says that Mr. Biden shared classified documents with a ghostwriter in 2017 when he was working on his memoir, “Promise Me, Dad.”

“In a recorded conversation with his ghostwriter in February 2017, about a month after he left office, Mr. Biden said, while referencing his 2009 Thanksgiving memo, that he had ‘just found all the classified stuff downstairs,’” Mr. Hur writes. The special counsel says that this act would represent the “best case for charges” against Mr. Biden. 

Mr. Hur again writes about Mr. Biden’s diminished mental capacity and memory, saying that the president could have easily forgotten that he even had the documents in his garage. “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,” Mr. Hur writes. 

“In addition, Mr. Biden’s memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023,” he continues. “And his cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake.”

In a letter to the special counsel that was ultimately included in the appendix of the report, the president’s lawyers, Bob Bauer and Robert Sauber, take issue with Mr. Hur’s characterization of the president’s mental acuity.

“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” Messrs. Bauer and Sauber wrote on February 5. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”

The attorneys also note that Mr. Hur’s interview with the president took place the day after the October 7 attacks, and the president had not been sleeping and was on a marathon of calls with foreign heads of state.