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Special Counsel Report: Biden Willfully Retained Classified Information But Will Not Face Charges. Aired 3:30-4p ET

Aired February 08, 2024 - 15:30   ET



MJ LEE, CNN SENIOR WHITE HOUSE CORRESPONDENT: It is a pretty fiery statement if you take a look at this part. It says the special counsel could not refrain from investigative excess, perhaps unsurprising given the intense pressure of the current political environment. Whatever the impact of those pressures on the final report, it flouts department regulations and norms.

Bob Bauer goes on to say that this is a report that could have been presented basically in this form of a summary final report, but instead it says the special counsel turned over stone after stone and produced 379 pages. Earlier on in the statement, it talks about just the lengths to which the special counsel's office went to conduct this investigation as we've been talking about a 15 month inquiry involving 173 interviews of 147 witnesses, more than 77 million documents, using millions of dollars -- of taxpayer dollars essentially is what Bob Bauer says. I mean this is us seeing in real time sort of the frustrations inside the White House among the president's allies bubbling over now that the report is out in terms of how the investigation was handled.

For one, I can tell you that folks here have wanted this report to come out much earlier, even sometime last year. But instead they're just seeing this now much later than they would have hoped. They thought that it could have been a relatively fast investigation.

They certainly didn't think and were frustrated when they realized that it was going to take this long and that it was this extensive. And there have been also just some simmering frustrations about Merrick Garland. Now I should note that is a topic that White House officials, White House advisers are incredibly careful to avoid talking about publicly.

But even the decision that Merrick Garland made to appoint Robert Hur, this person who had served in senior roles in the Trump administration, there were some thought that that even that decision was a way for Merrick Garland to be extra cautious politically.

And this is something that the Bob Bauer statement gets at as well, just this idea that when you are investigating someone like the president, someone in his position that everybody expects that there is going to be outsized attention and this kind of sort of sort of scrutiny that comes with the investigation. But he is making clear that because of those political pressures, they ended up flouting what again he calls norms that they should have really adhere to.

It says they should not have violated well established department norms and essentially trashing the subject of an investigation. This is something that he's citing from a former Department of Justice Inspector General statement.

And so, the suggestion there is that some of the comments that we talked about earlier when the report first came out, really going into details and repeatedly mentioning issues with the president's memory, his recall.

Clearly, they are seeing that as completely inappropriate and really irrelevant. And I think they would certainly say that they don't agree with those conclusions either.

BORIS SANCHEZ, CNN HOST: MJ, please stand by. We want to bring back Evan Perez. Evan, this statement coming from the White House counsel describing the special counsel as acting with investigative excess, flouting Justice Department regulations and norms. We understand that a spokesman for the special counsel's office declined to comment and alleged -- rather they declined to comment on these allegations coming from the White House counsel.

What do you make of that allegation of investigative excess?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Well, let me just provide a little bit of context as to what Bob Bauer is getting at. The direct comparison, what he's trying to bring up is what James Comey did. If you remember that July press conference when they closed the Hillary Clinton email investigation, you know, he went -- he did a public press conference in which he announced that they were not going to, you know, exceeding what the FBI is supposed to be doing, that they were not going to be pursuing any charges against Hillary Clinton, again, not within his purview. But then proceeded to list all of the different things that Hillary Clinton had done wrong in her handling of classified information with that private email server.

That's the context that Bauer is referring to and he's making a comparison really to that episode because everybody since then has said, you know, we can't do that, that that's not the way the Justice Department behaves, we cannot go out and trash people when we are declining to bring charges. The only way, you know, to do this is if you are going to bring charges.


The problem is this, this is a special counsel investigation. At the conclusion of a special counsel investigation, the rules are that he produces a report and that report goes to the Attorney General and of course Congress is going to want that report. He can provide that report to Congress. It's impossible to not have that report also become public as a result of that.

And so, while I can understand the frustration that you're the personal attorney of the president of the United States, with the wording in this report, this is the system that we have. And so I think people in this building here, the Justice Department, would disagree that there is some kind of violation of their norms, because this is the way this was laid out. And by the way, when the attorney general last year made public statements, he said that all of the special counsels that we have now in this building, all of their reports will be made public with as minimal redactions as possible. In this case, we've seen no redactions from the report.

And so, if you're Merrick Garland, you would be criticized either way you went on this, right? And I think that's the reason why you see this report being so detailed in the findings, guys.

BRIANNA KEILAR, CNN HOST: Yes. Let's go ahead now and read.

We have actually a statement here, if I can pull it up in email from the president himself.

SANCHEZ: Yes, this is from President Biden himself. And it's interesting because he notes the timing and the circumstances around his interviews with the special counsel.

And perhaps if you read between the lines, gives some kind of justification for what were described as hazy responses coming from the president, even though we should note that in the special counsel's report, he details hazy conversations between President Biden and his ghostwriter going back to 2017. So this is a different circumstance.

Nevertheless, the president says, quote: The special counsel released today its findings about its look into my handling of classified documents. I was pleased to see they reached the conclusion I believed all along they would reach, but there would be no charges brought in this case and the matter is now closed.

He goes on to say, quote: This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young senator. I cooperated completely, threw up no roadblocks and sought no delays. In fact, I was so determined to give the special counsel what they needed that I went forward with five hours of in-person interviews over two days on October 9th -- October 8th and October 9th of last year, even though Israel had just been attacked on October 7th. And I was in the middle of handling an international crisis. I just believe that's what I owe the American people. So they could know no charges would be brought. And the matter closed.

He closes the statement saying, quote: Over my career in public service, I have always worked to protect America's security. I take these issues seriously and no one has ever questioned that -- end quote.

KEILAR: Yes. Let's get our viewers up to speed here to remind them what is happening here, which is that the special counsel and we are talking here about Robert Hur. This is the special counsel who was appointed in the handling of documents -- of classified documents by President Biden before he was president, but after he was vice president. Documents that were found at numerous locations that Biden did cooperate in this investigation with.

And so now you have these findings that he willfully retained classified information and he shared it with a ghostwriter, but he's not going to face charges. And part of that is because he would appear to a jury, the report says, as a sympathetic, well-meaning elderly man with a poor memory. And the extent of his memory is detailed, actually in pretty excruciating detail.

This has been seized on, the legal part of this, by Republicans, specifically House Judiciary -- the House Judiciary Committee, the Republicans on that committee, saying that this invalidates former President Trump's classified documents case. We have to be clear, and this report is clear, it is not the same legally what Biden did compared to what Trump did.

Trump repeatedly given the chance to cooperate in his investigation did not. That is not what happened with Biden. But there's another part here, which is, does this politically invalidate that case? And that is a much more open question.

But let's deal with some of the legal issues here as we get to Laura Coates. She's our CNN anchor and chief legal analyst. What stands out to you here, Laura?

LAURA COATES, CNN ANCHOR AND CHIEF LEGAL ANALYST: First of all, wow, what an unbelievable report that has been filed by the special counsel.

What really strikes me here are the reasons to decline to prosecute this case. Remember, the former President Donald Trump also facing charges at this point in time for willful retention of documents.


You got that word willful again here when you're talking about the current president of the United States for behavior when he was the then vice president and following that.

Why that's so important is because those two charges or those two allegations certainly track, but one resulted in not a prosecution, the other did. Now, remember, both this person, the special counsel, Hur and Jack Smith, have been on parallel tracks investigating the retention of classified documents.

Where they vary is the meat of the matter, Brianna. They vary because Joe Biden voluntarily alerted the public and of course, special counsel at that time, the DOJ, that he had the documents in his possession. Trump had to be subpoenaed and continued to fight it after that. His case diverges in terms of disclosure potentially, and of course the behavior after they asked him for the documents back.

Biden, on the other hand, the way in which the documents were kept is a very key part of the decision not to prosecute here. Is that it was in a damaged box of some sort with household items around it, which undermined the prosecution's ability to say that it was a willful retainment and not an inadvertent retention of documents and that it would have not been an easy case to prove. But then there's that damning part about how a jury might see this person, elderly, well meaning and instead results in this behavior.

That's a very scathing summation of a reason not to prosecute, but it does vary in a very meaningful way. Ultimately, the political aspect of this will undoubtedly rule the day in conversation.

But pragmatically speaking, if you're a prosecutor, you're looking at a number of factors. One, can I prove the intent and willfulness to my best ability and beyond a reasonable doubt? They don't believe that they could have done so. They decided not to prosecute.

The other aspect is, what are the optics in terms of how I'm going to establish through circumstantial evidence or contextual clues what was done here? If I cannot meet my burden of proof, I cannot actually prosecute the case with a straight face and an eye towards justice.

But remember very early on, the reason that Merrick Garland, the attorney general, appointed these two special counsels, Jack Smith and of course, Mr. Hur, was why? Because optically, he did not want there to be some notion that one person who had an eye towards other prosecutorial matters with Donald Trump would decide both issues.

So this is really important in terms of the optics politically and how people will see this. How can it be that both have been said to willfully retain and only one ends up in a prosecution? This is exactly the narrative and the talking point that will be used in defense of Donald Trump. And it'll be the exact thing talked about for Joe Biden as to why they chose not to prosecute him for this. Optically, very problematic. But as a former prosecutor, if you cannot make your case, you shall not prosecute.

They felt they could in the Donald Trump area. And that's very distinct.

SANCHEZ: The level of cooperation from Biden's team, a large part of why charges are not being pushed forward here.

And also, we should note against his ghostwriter as well, because there was a consideration at one point, the special counsel details over pursuing an attempt to, I forget the exact term, but essentially interfering with the investigation. Right, Laura? Because he deleted some audio notes.

KEILAR: Obstruction.

SANCHEZ: Obstruction, thank you. Obstruction after he deleted some audio notes, conversations that he'd had with President Biden after he learned that an investigation was underway into those classified documents. And ultimately, the special counsel opting not to press charges largely because that ghostwriter cooperated completely with the investigation and even turned over some of the most damning evidence.

COATES: What you're seeing really is prosecutorial discretion. Now, the way the sausage is made in Congress ain't pretty. It's not pretty in the Department of Justice either.

But the considerations as to why you're going to encase that sausage are all about how you can prove your case. And cooperation goes a very long way. Why? Not because it's a way of sort of kissing up, but because it undermines before a jury, the notion that somebody is intentionally engaged in behavior that was nefarious and criminal.

Now, the fact that there was a disclosure that he was aware of and then deleted potentially, as they outlined in this particular report, does track a lot with what you may have heard in Mar-a-Lago. Right.

The notion that he was trying to -- talking about Trump -- destroy some evidence or a server or was aware of something and did not disclose to his attorneys fully about the scope of the amount of documents that were in his possession and beyond. This is where the political optics comes into play yet again.


But to focus the issue from the legal perspective specifically, remember the burden of proof for willfulness is always is always going to have that intent and that mens rea, or your state of mind component.

And the more that you do to try to demonstrate your cooperation or your inadvertence or ways that suggest that once you were made aware, then you took corrective action, you can go a long way in terms of undermining a prosecutor's ability to really make their case. That factored in very largely here.

But just to be specific for the audience, the disclosure was made to a ghostwriter in furtherance of a book. OK. I think the book was called Promise Me, Dad, back in 2070, if I'm not mistaken. And that disclosure to that person is where Biden allegedly said something along the lines of, oh, I found the classified documents in the basement or in the location they were in.

Well, the special counsel examined that proposition and thought that was the strongest case to make for a prosecution. But because of the manner in which the documents were kept, the appearances that it was among a number of household different items and beyond, just that it was not intended to be kept secret and sacrosanct as the way it should have been or trying to divulge to somebody else. And that factored into all of this.

We compare this most directly with the images we've seen from the Mar- a-Lago case, the positioning of the documents, the accessibility to people from the Mar-a-Lago resort and beyond. And while I hesitate to compare these two cases directly, how can one help but do so in this instance? But these are divergent for this very reason.

One stepped on a rake. The other cooperated.

KEILAR: Very good point. Laura Coates, thank you so much. If you could stand by for us, we're going to get in a quick break as we follow this breaking news report from the special counsel in the case involving President Biden's handling of classified documents in the time before he was president. But after he was vice president, they found that he willfully retained documents and shared the information. But he will not face charges and some pretty important revelations about his memory.

We'll be right back.



SANCHEZ: We've been following some major breaking news into CNN.

A special counsel releasing a searing report on President Biden's handling of classified military and national security information. The report finding that President Biden willfully retain classified information, but ultimately will not face charges. We're looking at images ostensibly from the inside of Biden's Delaware garage where classified documents were discovered.

Also notable in this report, the president before he was president, after being vice president back in roughly 2017, shared some of that classified material with a ghostwriter that was helping President Biden write a memoir. And the details of those interactions, Brianna, do not appear to politically help the president when he is in a vulnerable moment heading into a very competitive election likely to face former President Trump in the general.

KEILAR: No, they certainly don't. And they speak to his memory. And this is going to be something that politically is seized upon. And you have the White House saying that some of these things are inappropriate. And it makes you wonder if this is what they're referring to in the report. I want to read part of it.

It says, quote: Mr. Biden's memory also appeared to have significant limitations both at the time he spoke to Zwonitzer -- that's the ghostwriter -- in 2017, as evidenced by the recorded conversations and today as evidenced by his recorded interview with our office.

Mr. Biden's recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.

In his interview with our office, Mr. Biden's memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended. Quote: If it was 2013, when did I stop being vice president, end quote. And forgetting on the second day of the interview when his term began, quote, in 2009, am I still vice president, end quote.

He did not remember even within several years when his son, Beau, died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him.

Let's go ahead and bring in Paul Begala to talk about what all of this means. Paul, obviously, the White House saying this is good news, he's not going to face charges, but this is certainly not all good news for the president. What do you think hearing about this?

PAUL BEGALA, CNN POLITICAL COMMENTATOR: Right, I think that good news, but we have 270 days until the election. There's no charges here. That means there's no ongoing news, particularly if Mr. Biden is able to give a statement, put it to bed, and move on.

Meanwhile, his certain opponent has 91 felony charges pending against him. Some of them also involve classified documents in a completely different fact pattern, right? Biden can claim, I was investigated by an independent counsel and I was cleared. A lot of cheap shots like that, you're like having nothing to do with the law, but I was cleared. Now, maybe Mr. Trump will be cleared, but he's been indicted though. Biden was not even charged.

Mr. Trump will have a right to defend himself in court. Maybe he's pristinely innocent, but he's looking at 91 felony charges. Joe Biden's looking at zero.


SANCHEZ: Paul, when we look at the classified documents case that Donald Trump is facing, there are obviously major legal distinctions, but if you were going to select a jury in South Florida that will look at some of these details in this report that Biden willfully retained classified information, do you think it's going to be easy for a prosecutor to make a case in that context that President Trump is facing the same kind of considerations that President Biden is facing in this decision?

BEGALA: Well, they may. I mean, I think that the argument that everybody does it is probably one that defendants use in all kinds of cases. I'm not sure how effective it is.

The prosecution will have to then make the argument that no, in fact, some people do have classified documents that travel with them when they leave office. OK, what do they do when the government informs them of that? It looks like we know now from the report that President Biden cooperated completely, turned everything over.

The allegation against Donald Trump, it's just an allegation, is that he didn't tell the truth and he obstructed the government's ability to get those records back, that he showed them to other people.

Again, these are just charges. They're indictments and not convictions. But I think the prosecution in the Trump case is going to say that is the difference between a mistake and a criminal act.

KEILAR: OK, but Paul, you're a political consultant. So let's talk about the political side of this, because while legally, these two things may be different, politically, one, Republicans are going to seize on this. And there is something there for them to at least try to politically invalidate Trump's documents case, even if legally, these are not the same thing, because former President Trump certainly did not cooperate as President Biden did.

But when it comes to the memory stuff, that is very specific and pretty alarming, how is that going to affect how voters perceive President Biden?

BEGALA: Well, you're exactly right, Brianna. That's the problem for Joe Biden. It's not that 270 days before the election, he was cleared of any charges in this matter.

It is that a guy who's 81 will be 82 when the election comes around. Most voters already think he's too old for the job. And if this feeds into that narrative, and it does, then it's really problematic. And that's where the Biden people, I'm sure, are really worried and quite upset.

Look, they got to put him out more. He's got to show. I've been in a room with him, but haven't talked to him since he became president. So I can't tell you firsthand. Most Americans have not been hanging around with him personally. So they want to see him. They're going to have to put him out more.

You know, I understand he doesn't want to do the Super Bowl interview because it kind of mixes politics with a sporting event, and that's sometimes considered bad form.

But they're going to have to put him out more. He's going to have to show. Now, I've talked to people who work directly for him. I talked to a former national security official who served in Republican and Democratic administrations, who briefed Joe Biden until very recently and said, oh, he's absolutely sharp. But they're going to have to make that case. You're right.

Everything that happens to Biden, we're going to process through the lens of, is he too old, right? Everything that happens with Trump is, is he too corrupt and crazy, right? So they each have monumental negative ratings and negative problems. But you're right, that frame with Biden is anything that goes to he's too old to do the job is really problematic. And that's exactly what the special counsel did.

Now, his lawyer, as President Clinton would say, is squealing like a pig stuck under a gate because it has nothing to do with the case. It seems, it does seem to me, I'm a Democrat, I like Biden, OK? It seems like a real cheap shot. You know, people who've been under oath are really, really careful.

And so sometimes they say, I can't remember if they're not absolutely precise. And the notion that he forgot when his son died, no. He was probably just under a lot of stress. It was the worst day of his life.

So I just, to me, that seems like a cheap shot, but if I were running against him, if I were running Trump's campaign, I would use it because it's not even a cheap shot coming from Donald Trump, it's coming from an independent counsel.

SANCHEZ: I do quickly want to push back on the idea, Paul, that the White House would put President Biden out there more because just this week, they're cleaning up remarks that he made, mixing up world leaders that had been dead for years.

Wouldn't that be more of a liability for them? They have a serious problem on their hands.

BEGALA: Yes, but Trump has the exact same problem. First, let me talk about Biden. I don't want to change the subject, of course. Yes, now, I've known Biden over 30 years. He was the same way 30 years ago, right? The gaps are built in to the Biden appeal, or the Biden dislike, right? He's been the same guy.

And, you know, some of the Obama people used to snicker about it, but, you know, it didn't hurt him when he ran in 2020 and he beat Donald Trump. And they can turn the tables and say, well, wait a minute, Donald Trump was saying that Nikki Haley was in charge of security at the Capitol. He was saying that we were going to get into World War II if Joe Biden gets reelected.


I mean, Trump has a long list of really frightening mental gaps of his own.

KEILAR: Paul, we thank you so much for joining us for this breaking news. Special Counsel Robert Hur not going, not recommending, obviously, that there will be charges in the handling of classified documents here, Boris, but obviously raising a lot of questions.

SANCHEZ: Yes, and we are also getting a statement just moments ago from former President Donald Trump describing this as a double standard. Of course, CNN will keep you posted with the very latest. We'll send it over to Jake Tapper with "THE LEAD."