Justice Department report on Biden classified documents coming soon, with no criminal charges expected

The Justice Department is preparing to release a special counsel report in coming days that is critical of President Biden and his aides for mishandling classified documents in Biden’s private home and former office, but prosecutors do not plan to pursue criminal charges in the case.

The long-awaited decision by special counsel Robert K. Hur will probably roil the presidential contest as Republicans seek to paint Biden as a criminal - and as Donald Trump, the president’s likely GOP rival for the White House, faces trial for allegedly keeping boxes of classified papers at his Florida home and obstructing officials’ attempts to retrieve them.

While the facts of the Biden case appear to have major differences from the Trump case, Hur’s conclusions are likely to face intense scrutiny from Republicans in Congress.

Officials have been planning to release the report as early as this week, though prosecutors could decide to push it back, according to people familiar with the matter who spoke on the condition of anonymity to describe still-secret plans for the release. A spokesman for Hur declined to comment.

In recent weeks, the report has been reviewed by intelligence officials to navigate how much to reveal about the classified materials found in 2022 at Biden’s Wilmington, Del., home and his former office, given that the report must be sent to Congress and released to the public. The documents in question dated to Biden’s time as vice president during the Obama administration.

Attorney General Merrick Garland appointed Hur in January 2023 after aides to Biden found the sensitive government materials. The discovery came as a separate special counsel was investigating Trump’s alleged mishandling of classified documents - an investigation that led to 40 federal criminal charges against Trump, including willful retention of national defense secrets and obstruction of justice.

Garland said at the time that special counsels were necessary because both Trump and Biden had indicated they would be running for president in 2024.

Biden was interviewed at the White House by Hur over a two-day period in early October - even as his administration grappled with the outbreak of the Israel-Gaza war. Dozens of current and former Biden staffers, including Secretary of State Antony Blinken and former White House chief of staff Ron Klain, were interviewed as part of the investigation.

Some aides to the president have expressed frustration that Hur’s investigation lingered on for months after the Biden interview. The aides spoke on the condition of anonymity because they were not authorized to speak publicly.

In announcing the Biden interview, a White House spokesman said the president and the White House “are cooperating with this investigation” and pledged to be “as transparent as we can consistent with protecting and preserving the integrity of the investigation.”

Hur is a former U.S. attorney from Maryland who had held other posts in Trump’s Justice Department. He took leave from his private firm to lead the Biden investigation. Special counsels have more independence from Justice Department leaders than other federal prosecutors, but they ultimately answer to the attorney general.

In addition to deciding whether to seek criminal charges, special counsels are required to file a confidential report to the attorney general explaining their decisions. In recent special counsel matters, the bulk of those reports have been released publicly, albeit with some redactions for sensitive information. Hur’s investigation cost taxpayers nearly $3.5 million as of Sept. 30, according to a report released in January.

Investigating a sitting president and his aides is a fraught exercise, in part because Justice Department policy maintains that a sitting president cannot be charged with a crime. However, Biden’s aides could have been charged, if the special counsel found proof of criminal wrongdoing.

Based on what is publicly known about the two classified-documents probes, the Trump investigation seems significantly different from the Biden investigation. The number of documents involved in the Biden probe appears far smaller - fewer than 20 or so in Biden’s case, compared with roughly 300 for Trump.

Perhaps more importantly, federal prosecutors came to suspect Trump was deliberately misleading them and hiding some highly sensitive papers even after he received a grand jury subpoena demanding their return. Biden has said that he cooperated with investigators and handed over the documents as soon as they were discovered.

In the early stages of the Biden investigation, however, the seemingly slow pace of his lawyers’ searches and document discoveries raised concerns among federal law enforcement officials, the people familiar with the matter said.

Showing willful intent to mishandle national security secrets is often a key factor in charging decisions involving classified papers.

Trump is accused of deliberately trying to mislead investigators as they demanded the government documents back. He is scheduled to stand trial on those charges in Fort Pierce, Fla., in May, although the judge in the case has suggested there may be delays as prosecutors and defense attorneys work their way through the complicated legal procedures for trials involving classified evidence.

Trump, who is closing in on the Republican presidential nomination, faces three other criminal trials: federal charges in D.C. and state charges in Georgia for allegedly seeking to block the 2020 election results, and a state trial in New York for allegedly falsifying business records in connection with hush money payments during the 2016 election.

About 10 documents from Biden’s time as vice president were found Nov. 2, 2022, when lawyers for Biden were cleaning out his private office at the Washington-based Penn Biden Center for Diplomacy and Global Engagement, a think tank Biden started with the University of Pennsylvania after his tenure as vice president.

The attorney, Pat Moore, found the documents in a small closet and called White House lawyers, who contacted the National Archives and Records Administration, the federal agency responsible for storing and preserving presidential records.

The Justice Department soon launched an assessment to determine if any laws might have been broken in the matter. John Lausch, the U.S. attorney in Chicago and a Trump administration holdover, oversaw the initial investigation.

In December 2022, legal representatives for Biden searched his home in Wilmington, Del., and found a “small number” of records with classified markings in the garage, the White House has said. In January, lawyers found another potential record with classified markings at the Wilmington residence, in a room adjacent to the garage.

Biden’s vacation home in Rehoboth Beach, Del., also was searched, but no classified material was found there, the White House has said.

Biden’s personal attorneys arranged for the Justice Department to take possession of the material. Soon after, Lausch told Garland that a special counsel appointment was warranted, and Hur was appointed.

Former vice president Mike Pence searched his properties around the same time and found potentially sensitive government materials. Federal investigators looked into that situation as well, but they closed their investigation in June without charges.

Biden aides, speaking on the condition of anonymity to discuss the investigation, have said they believe the documents unintentionally ended up at Biden’s home and office because of sloppy staff work.