Criminal Justice & the Rule of Law Executive Branch

Biden Interview Transcript Reveals Some Flaws in the Hur Report

Matt Gluck
Tuesday, April 2, 2024, 10:43 AM

Robert Hur’s analysis of Biden’s “I just found all the classified stuff downstairs” does not engage with Biden’s explanation of the comment.

President Joe Biden walking in the White House, August 31, 2021 (Official White House Photo by Erin Scott,; Public Domain)

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It is relatively rare we get to check the work of a special counsel. But with Robert Hur’s report on President Biden’s handling of classified material, the opportunity to do so presented itself quickly. 

The Hur report came out in February, and the Justice Department followed up on March 12 by releasing a mostly unredacted transcript of Hur’s five-hour interview with Biden. This is the document on which a great deal of the report is based, so a close comparison between the two gives the ability to inspect a number of Hur’s judgments.

During the interview, Hur and Deputy Special Counsel Marc Krickbaum questioned Biden on his recollection of the location of documents containing classified material, on Biden’s routines concerning his handling of classified documents, on his understanding of the classification system, and on many other things. And the transcript largely affirms much of Hur’s description of Biden’s conduct. It confirms that Biden kept his notebooks that contained classified information in nonsecure locations, that it was likely his handwriting on two folders that FBI agents recovered from his Delaware garage in December 2022, and that he cared deeply about the 2009 Afghanistan policy debate and how his place within it would be remembered, for example. 

But the transcript also reveals two shortcomings in the report that are worth highlighting. The first is Hur’s description of Biden’s memory, which really does do Biden a bit of an injustice. The second, and more important, of the flaws is Hur’s analysis of a February 2017 comment by the then former vice president that serves as the nexus to some key evidence Hur cites for Biden’s supposed wrongdoing.

One of these issues has received ample, perhaps excessive, press attention. The other has gone largely unnoticed. 

Before examining these two issues specifically, it’s important to note an overarching point about Hur’s report to contextualize the analysis that follows. Hur wrote a declination memorandum. His task was not to describe Biden’s conduct or mental acuity comprehensively. His task, rather, was, in the words of the special counsel regulations, to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” 

Hur could have chosen to write a much shorter report describing his declination decision in a fashion that did not appear to be a near-comprehensive account of Biden’s conduct—one that required 388 pages. Had this been the case, it would be odd and inappropriate to criticize the report for what it leaves out. The regulations permit that kind of more cursory report, and there would have been no problem with Hur writing it. 

But Hur did not write that kind of report. Instead, he decided to issue a report that certainly presents as a near-exhaustive description of Biden’s conduct. Since he chose to shape his report in that manner; he knew the report would be released to the public; and he decided it was necessary to address the politically salient issue of Biden’s cognitive abilities in the context of an election in which Biden’s cognitive capacity is at issue, he had—at least in my view—an obligation to include all information substantially relevant to his findings and analysis. While the special counsel regulations do not require the special counsel to portray the subject of his investigation fairly, Hur imposed that responsibility on himself by choosing to compose his report as he did. 

Hur’s Portrayal of Biden’s Memory

Since the transcript surfaced, many commentators have used it to suggest that the report exaggerated Biden’s memory problems. At least some of these arguments appear to be valid, at least to the extent we take the report as a broad commentary on Biden’s memory and cognitive capacity. 

Condensing the findings of a 15-month investigation into a single report requires making difficult choices about what to include. Hur did not relate in his report every comment the president made that raises questions about his memory, and he did not exclude everything Biden said that reflects well on the president’s memory. But there are several statements Biden made during the interview that challenge Hur’s characterization of Biden’s memory, and whose inclusion would have portrayed the president—and how he would appear before a jury—more accurately.

While there were several moments during the interview when President Biden struggled to recall certain details, there were other times when the president related events, arguments he had made, and his daily practices in a seemingly precise manner. As Rep. Eric Swalwell (D-Calif.) noted during Hur’s testimony before the House Judiciary Committee, Hur at one point during the interview said in an exchange about President Biden’s Wilmington, Delaware, lake house that the president “appear[ed] to have a photographic understanding … and recall of the house.” Hur did not note that in his report. 

Hur also seems to have characterized somewhat unfairly Biden’s recollection of the timing of his son Beau’s death, as others have written. While President Biden seems to have initially struggled to remember the year his son passed away, he said correctly that Beau died on May 30. And Biden’s momentary difficulty remembering the year his son died may have been due to his mixing up two different time periods when he was considering running for president—during only one of which Beau died. This exchange does not portray a perfect memory, but it appears more nuanced than Hur’s statement in his report that Biden “did not remember, even within several years, when his son Beau died.” 

Further, while Hur writes that Biden’s “memory appeared hazy when describing the Afghanistan debate that was once so important to him,” Hur’s description of Biden’s recall of the policy debate in 2009 over whether the U.S. should conduct a surge in Afghanistan leaves out Biden’s recollection of a few important details that suggest he may remember the debate more accurately than Hur’s portrayal indicates. 

While the report notes correctly that Biden mistakenly said during the interview that Gen. Karl Eikenberry believed the U.S. should surge troops into Afghanistan, Biden later corrected himself on Eikenberry’s views without prompting. Hur’s report left that out. 

Additionally, during a discussion in the interview of notes from a September 2009 Principals Committee meeting about Afghanistan and Pakistan, Biden described the general debate that the specific conversation at the meeting concerned: “the debate was, with McChrystal and company, that if somehow we defeated Al Qaeda and killed Bin Laden in Pakistan, [would] we still have the same level of commitment McChrystal was asking for to defeat the Taliban in Afghanistan. The answer … Intelligence, State, and Defense was yes.” McChrystal’s public statements from December 2009 appear to affirm Biden’s recollection of the overall conclusion from this debate, though there may have been more internal disagreement than Biden recalls. Biden’s description of the debate does not appear in the report. 

At another point, Biden accurately noted that one policy outcome that emerged from his argument against the surge of troops was a “commitment that there would be an absolute time limit” on the deployment of additional personnel to Afghanistan. Hur chose not to mention Biden’s memory of this outcome. 

That President Biden made these statements does not mean Hur was wrong to note Biden’s slipups, but it seems that providing this additional context would have been fairer to the president and, more importantly, depicted more accurately the subject of Hur’s investigation.

None of this affects the outcome at all. And Hur is not obligated to note that a hypothetical Biden defense may be overstating the case when it portrays him at trial as a “sympathetic, well meaning, elderly man with a poor memory.” Nor is he required to depict this defense in all its details. That said, knowing the report was to become public in a fevered political environment in which Biden’s age is a major question, it would have been better to be more—rather than less—accurate. 

The “Classified Stuff Downstairs” Comment

The second and more significant shortcoming of the report made clear by the transcript of Biden’s interview concerns Hur’s analysis of one of Biden’s statements to his ghostwriter, Mark Zwonitzer. Biden stated that in February 2017 he found in his Virginia home “all the classified stuff downstairs.” Hur relies significantly on that comment in his analysis of Biden’s conduct and, specifically, for his conclusion that Biden knew he had retained classified material in a fashion that was arguably willful. In particular, he relies on his office’s analytical finding that Biden appeared to have been referring to a particular batch of classified material when he made that comment. 

But Hur here leaves out a notable possibility that emerges clearly in the transcript but that is absent from his report: Perhaps instead of referring to having a cache of classified material in his basement, Biden was referring in that comment to a single memorandum he wrote to President Obama around Thanksgiving in 2009 (the “Thanksgiving” memo) expressing his opposition to the surge in Afghanistan. 

Let me explain.

Biden made this “I just found all the classified stuff downstairs” comment during a recorded conversation with Zwonitzer, which took place on the main floor of Biden’s Virginia home, about a 2015 National Security Council meeting regarding Iraq policy. In that conversation, Biden drew a connection between his arguments during that meeting and assertions he made in 2009 as part of the debate concerning the surge in Afghanistan. In drawing that connection, Biden referenced the 2009 memorandum he wrote to President Obama. Biden said,

So this was—I, early on, in ’09—I just found all the classified stuff downstairs—I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq—I mean, to Afghanistan—on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago.

Hur lays out the following in his report: Biden lived in his Virginia home part time after the end of his vice presidency until July 2019 and, according to Hur, likely retained “two folders containing [hundreds of] marked classified documents related to the fall 2009 policy review on Afghanistan” during this period in the basement of that home. These Afghanistan documents—which were classified up to the Top Secret/Sensitive Compartmented Information level—consist of memoranda from Biden to Obama expressing Biden’s views relevant to the policy debate, including drafts of Biden’s Thanksgiving memorandum to Obama; classified intelligence reports; policy and strategic reviews; notes from meetings; and assessments of and proposals concerning relevant tactical issues from military officials, among other documents.

Hur says that these documents were likely moved from the Virginia home in July 2019 to the Delaware home and transferred at some point to the box where they were eventually found by FBI agents in Biden’s garage in December 2022. The box where these folders were eventually found also contained unclassified documents that were personally important to Biden and, notably, a folder labeled “mark Z,” an apparent reference to Biden’s ghostwriter, Mark Zwonitzer, to whom Biden made the “I just found all the classified stuff downstairs” comment. That “mark Z” folder was dated Feb. 16, 2017—the day Biden made this comment to Zwonitzer—and contained within it the final book proposal for Biden’s most recent book, “Promise Me, Dad.”

Hur writes that “the strongest case for criminal charges against Mr. Biden relating to the Afghanistan documents would rest on his retention of the documents at the Virginia home in 2017.” 

But why does Hur think Biden may have had these documents when he lived in that home? Hur says that the “found all the classified stuff downstairs” comment is the primary evidence, with other evidence “provid[ing] some additional clues.”

According to the report, the special counsel’s office was “unable to determine how the marked classified Afghanistan documents got from the White House … to [Biden’s] Delaware home, where they were found in 2022.” But despite this uncertainty, Hur concludes that when Biden made this recorded statement to Zwonitzer, he seemed to have been referring to the marked classified documents found by the FBI—with the statement serving as his main source of evidence.

This statement, then, is doing a lot of work for Hur. That, on its face, is completely fine. Recorded statements are sound evidence for prosecutors. However, describing most accurately the salience of this critical statement—certainly one of the most critical pieces of evidence in Hur’s entire investigation—requires including in the report the explanations of it that would portray Biden’s conduct most favorably. 

And the transcript of Hur’s interview with Biden gives at least some reason to doubt that Hur’s analysis of this comment does so. Biden’s lawyers made a similar point in their letter critiquing the Hur report. 

In evaluating whether to charge Biden with willfully retaining classified documents related to Afghanistan largely on the basis of Biden’s comment to Zwonitzer, Hur ultimately concludes that “[t]here are at least three defenses likely to create reasonable doubt as to such charges.” Those three defenses are that (a) Biden could have found these documents in 2017 at his home in Virginia and subsequently forgotten about them; (b) the documents may have been stored in Biden’s Delaware home since the end of his vice presidency, meaning Biden’s comment to Zwontizer did not actually represent the presence of classified material at his Virginia home; or (c) Biden may have found only a portion of the classified documents in 2017 at his Virginia home, but those documents did not contain national defense information—as the relevant statute requires. 

These are reasonable defenses, and Hur is right to consider them in deciding whether to charge President Biden. However, the list—and Hur’s report entirely—leaves out what is perhaps the most powerful defense, which happens to be the one that President Biden himself cited when Hur’s deputy, Marc Krickbaum, described the special counsel’s theory related to Biden’s 2017 comment during Biden’s interview. 

Krickbaum said, “One simple theory would be that when you told Mark Zwonitzer in February of 2017, and you were talking about Afghanistan, that you just found all classified stuff downstairs, what you meant was you just found all the classified documents [in the two folders described above] about Afghanistan that were later found in your garage in the [Delaware] lake house.” 

In response, Biden said that the “only thing I can think of is I was referring to … the memo I wrote to the President.” The FBI found that memo—the Thanksgiving memo—in Biden’s Delaware office in January 2023 in a notebook Biden used to catalog the Afghanistan policy review in the fall of 2009. 

Hur comes close to including in his report the possibility that Biden may have been referencing the memorandum when he made the comment to Zwonitzer. He notes that “Mr. Biden could have been referring to the collection of handwritten notebooks he kept when he was vice president.” And Hur even mentions that tucked into one of these notebooks was Biden’s Thanksgiving memo. But he chooses not to address the possibility that when Biden said to Zwonitzer that he “found all the classified stuff downstairs,” Biden was referring only to this memo. 

The exact effect of Biden retaining this memorandum and not the classified documents in the two folders is unclear. However, three points are clear. First, and most significantly, Hur explains, “Though the handwritten Thanksgiving memo has been determined to be currently classified, we cannot prove that Mr. Biden believed it was classified after leaving office in 2017. … Because we cannot prove that he knew the memo was classified when he left office, we cannot prove that by retaining the memo, he willfully retained national defense information.” Hur clearly recognizes how significant it would be if Biden had been referring to this memo instead of the batch of marked classified documents he claims Biden was likely referencing. But Hur does not note this as a possibility.

Second, and relatedly, Biden wrote the document. The precise consequences of authorship are not clear and beyond the scope of this piece, but it could be significant because it may provide further support for the possibility that Biden may have been unaware that he was not allowed to retain the document. This seems especially possible in light of Biden’s belief that the notebooks he used during his vice presidency were his to keep. Like the notebooks, the memorandum was written by Biden. Therefore, this self-authorship may have led Biden to believe he was allowed to possess the memorandum as well.

Third, Biden’s Thanksgiving memo contained material classified only up the Secret level, while the other batch of documents contained material with classification markings up to the Top Secret/Sensitive Compartmented Information level. And Biden’s memorandum has been publicly reported on, including in Bob Woodward’s book “Obama’s Wars”—making Biden’s retention of the document less threatening to U.S. national security.

In short, while Hur is not obligated to consider the defense Biden did offer to be as compelling as the defenses Hur thinks he might offer, and he is entitled to decline prosecution on any basis he wishes, it seems odd to leave out the explanation the president in fact rendered for his conduct—especially considering that it is not implausible and is arguably more exculpatory than at least some of the facts that Hur considered dispositive. 


Hur described how he viewed his task as special counsel in the only interview he has given since releasing the report: “I view it almost like an engineering task or a construction task. I am building a case. There are planks and nails and hammers. How does this thing get built with the requisite solidity and seaworthiness that it actually will hold up.” Hur’s 388-page report is full of planks and nails, and many of them are solid. Some, however, are not. The release of the transcript allows us to identify these weak points. 

Matt Gluck is a research fellow at Lawfare. He holds a BA in government from Dartmouth College.

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