sitting president with a crime. what they talk about here is that they believe the evidence that they have would not be able to be sustained, would not be able to sustain a conviction if this was brought before a jury. one of the reasons why as they say that despite the fact that he did bring these documents home, that that then vice president when talking to his ghostwriter simply was inadvertent in some of the documents, and some of the sharing of that classified information. they also say it is clear that joe biden has a faltering memory , he is an old guy. they point that out and they say that for those reasons they don't believe they could sustain a conviction against joe biden. i will note one other thing, that part of this investigation appears that the ghostwriter in this case who was working with joe biden deleted some audio

files that contained important evidence. once that person learned that there was an investigation. so the special counsel looked into the possibility of charging that ghost writer with obstruction of justice. they said in the end that they decided not to bring charges like that, because the ghostwriter ended up cooperating with the investigation, provided additional evidence, including some of the most damning evidence, including these audiotapes that show him talking with the former vice president biden about that classified document, those classified documents related to afghanistan. >> tell us a little bit more, just to refresh for viewers about robert hur, the special counsel here. >> well, robert hur served in republican administrations, he is, he served as a republican

appointee, he served as a former u.s. attorney during the trump administration in maryland. he was tapped by mayor garland, the attorney general here, because the then former sitting attorney in chicago who had been reviewing the findings of some of these documents just over a year ago. robert hur has been on the job for about a year, and as i pointed out, they say that they have done 147 witness interviews, 7 million documents from, certainly from our reporting with paula reid, we have heard from witnesses that they have been very, very thorough in this investigation. so we have long expected that

this is going to be a very tough, tough report for joe biden. and the inevitable comparisons are going to be made, right? with the trump investigation. because obviously the fact that this report details how joe biden willfully retained documents when he was not supposed to, after he left the vice presidency, and so the question will be asked, why no charges here versus the charges that are brought against former president trump? and robert hur , in his report, goes into that. he says there are number of factors that make this very, very different. including the fact that donald trump refused to turn over documents, classified documents after he received a subpoena that required him to turn it back over. that there were a number of other obstruction acts by the former president,

including telling witnesses to lie, and hiding documents when the fbi came to do a search of mar-a-lago. for those reasons, robert hur says this is a completely different situation. it is not quite the same thing as the trump investigation. >> i want to zoom in on something you just reported, that was in the report about this ghostwriter that was helping president biden write a memoir, that apparently had material that was deemed classified and inappropriate for him to have. you mentioned that it was some of the most damning evidence. is the application here that that evidence was designated as top-secret, the highest level of classification? >> right, that is exactly what the report says. the report says that among the documents that were found during the fbi searches were documents at the highest level, which is ts sci, top-secret

sensitive information. these are some of the highest classifications of documents that exist in the u.s. government. and by the way, similar level of classifications of documents were found at mar-a-lago during the fbi search there. so the comparison, of course, is there. and a lot of them had to do with joe biden's personal notes . notebooks that he took of situation room discussions. part of this was joe biden's very, very strong opposition to a troop surge in afghanistan late in the obama presidency. this is a very important thing the report describes, a very important part of joe biden's legacy as vice president. it was very well detailed, it is something that he discussed with his ghostwriter. and the ghostwriter produced audio recordings of those discussions. and in one of those discussions

the former vice president at the time of this recording says i just retrieved these classified stuff downstairs. i don't have it in front of me the exact wording, but that is the gist of the comment that is made by joe biden, then the former vice president to his ghostwriter. he says i just looked at this classified stuff downstairs. and that appears to be, according to this report, the most damning evidence that investigators found in this case, in this investigation. they go on to point out, however, that they can't establish that the documents were actually being held at the virginia home that joe biden and his family were renting at the time. there were a number of other factors that lead them to believe that they could not

sustain that if they were to try to bring charges against joe biden for that particular incident where he clearly knows that he has classified information from his time as vice president and was sharing it with his ghostwriter, who was not cleared, who did not have the right clearances to have that information. again, that is what appears to be the most damning piece of evidence that the investigators found in this investigation. >> yeah, it certainly is. he knowingly had that information and was sharing it. i want to go now, if you could stand by for us, as we are following this breaking news a special counsel. it out with a report that former, while he was not president, biden willfully retained classified information, that he knowingly

did so. but that there are not going to be any charges here. i want to go to mj lee at the white house for us. mj, any reaction from the white house? >> reporter: no official reaction from the white house or the white house counsel office, the office that the white house typically refers all questions, including earlier today, relating to this investigation. they of course have known that this was going to be out any day now, because remember, the white house counsel office did have a time to review the investigation in full for any matters of executive privilege, which he decided not to exert. i know that you have been talking about the two major headlines, which is that no criminal charges are being brought. but also, that despite that decision, the investigation uncovered evidence that the president willfully retained and disclosed classified materials. i think there is also a potentially very damaging political headline that we really need to take a beat to

talk about, as well. and that is, simply put, that the president is an elderly man with a bad memory. if you look through the report, and i am just still going through every page of this, but if you go through it there is a detailed explanation here for why the special counsel's office decided not to bring terminal charges against the president. and at various junctures, the report mentions the president's memory and memory issues being a factor. for example, it says the president's memory was significantly limited, both during his recorded interviews with the ghostwriter that evan was talking about in 2017, and in his interview with our office in 2023. it also makes a reference at another point in the report, mr. biden's limited precision and recall during his interviews with the ghostwriter and with the special counsel's office, it also talks about how president biden could present

himself to a jury as a quote sympathetic, well-meaning elderly man with a poor memory. now, i don't have to tell you that these headlines sort of right themselves, as far as the opposition and critics. and republicans are concerned this has been an area of targeting by republicans and the president's critics for a while now. even this week, we have been covering the fact that the president has had a number of mistakes, a number of missteps when he was recalling events from the recent past, when he was talking about meeting with different world leaders, mixing up their names and who they were, who was alive at the time and not. at this way, i think it is an important sort of framing and ammunition that this report offers to the president's critics, including, of course, former president donald trump. i should also note, regardless of what this report was going to ultimately say, the details

of who did what, who was at fault, any other details revealed in this very, very thorough report, the white house was always fully prepared for critics to weapon eyes this and use this to go after the president. i think the one thing that it does have, the white house has going for it is that it can now use robert hur's own words to draw that contrast between the circumstances surrounding the documents related to president biden and the circumstances surrounding documents related to former president trump. if you look here, robert hur says that in contrast from trump, president biden turns in classified documents to the national archives and the department of justice, consented to the search of multiple locations, including his home. set for a voluntary interview. we know that that happened back in october over the course of two days, and in other ways, cooperated with the investigation.

now, i have to tell you, the president, of course, is going to face a lot of questions based on the details in this report. one big one that comes to mind for me, you know, i was recalling back in january of 2023, this is a year ago, when the news of these classified documents were initially breaking. president biden told reporters i was surprised to learn that there were any government records that were taken there to that office. in other words, he suggested that when this came to light that he was surprised and did not even know about the existence of these classified documents in his office or his home. but, if you look in the report, they cite a 2017 reported conversation with his ghostwriter where the president himself says i just found all of the classified stuff downstairs. they say the tone was matter of fact, perhaps it was vice president for eight years, the fact that these kind of documents were around him for so many years, he might have

just said it in a flippant way and did not even think this was remarkable. but this is just one of the many questions that the president is going to have to answer, or will certainly face in the coming hours. >> they may try to draw some contrast, but in this report and says he knowingly retained and shared classified documents, and that is a giant arrow that is going to be used against him there. >> absolutely. mj, please stand by. speaking of ammunition for his critics, we want to go to capitol hill now where we are getting responses from house republicans, including from the judiciary committee. what are they saying? >> reporter: they just issued a statement criticizing the special counsel for not charging joe biden with a crime. this is the comment that came via social media from the house judiciary committee led by congressman jim jordan. it said that special counsel robert hur recommends no criminal charges against president biden, and the classified documents case. despite the fact that robert hur knowledges biden willfully obtained and disclosed classified materials after his

vice presidency when he was a private citizen. he goes on to say quote double standard. that is what we can expect to hear from double republicans here in the days and weeks ahead, even that donald trump was, of course, indicted over his mishandling and alleged obstruction involving the classified documents that ended up in his home in mar-a-lago after he left the presidency. but immigrants are quick to defend joe biden, saying that the situations are much different. that is a message that just came from the top democrat on the house judiciary committee, who put out a statement saying that republicans will no doubt called to investigate the investigators. he says that is their favorite move. he went on to say that president biden cooperated fully with the special counsel, redacted no portion of import. unlike trump, he says biden has nothing to hide. he goes on to say there is a contrast that if trump had cooperated he might have avoided at least some of the 91

criminal charges against him. so you can expect that this is going to be the line of arguments that are going to emerge in capitol hill, partyline defense from the democrats, partyline attacks from the republicans. of course, in the senate they are in the minority, so they don't have the investigative power that they do in the republican-led house. whether they decide to move forward with any additional investigation, well they put it aside and launch an impeachment inquiry into joe biden over whole set of separate issues they are trying to prove? will they added to this? those are questions that will have to confront. they did receive, committees did receive this report this afternoon. most members in congress have not seen this either. this is the 1st news they are getting windows, but expect more reaction to, as more people dig into these findings here. >> this report comes the same week that this effort to impeach the dhs secretary

alejandro mayorkas fell flat. there was excitation that he might be impeached, and that fell apart. perhaps created some apprehension for republicans that were bullish on impeaching president biden. but now that this report is out, do you anticipate that we might see a revival of that effort? >> it's hard to say, because there are separate issues that the impeachment inquiry has been digging into. it has really not been about joe biden's handling of classified information, it is about trying to tie joe biden to his son, hunter biden, and his actions. those efforts to prove a link or prove that joe biden profited in some way or acted corruptly while vice president to aid his son. they have not been able to prove that, despite months of investigation. hunter biden is scheduled to testify behind closed doors next month before the impeachment inquiry committees. but will that actually lead any evidence that could charge them with a high crime or

misdemeanor? that is uncertain. also uncertain, going down this route. even though there are new findings and new allegations here, pulling this into an impeachment inquiry, suggesting that this is a high crime or misdemeanor, and something that should report them to remove him from the presidency. they would have to spend a fair amount of time going further and investigating what the special counsel found here, not just simply relying on his report. that is going to take some time, and as you know, these things, as you drag closer and closer to an election, it gets harder and harder to do anything around here. especially in the narrowly divided house and unruly house gop conference. getting to the point of impeaching the president is going to be a tall task, even with these findings, no matter how damaging they may be for the president. >> certainly. let's bring in ashley allison, who is a former senior policy adviser at the white house. ashley, just react to this, because it is really difficult to see how this, granted, is

not the same when it comes to trumps document case, but how this doesn't at least politically and validate that as a problem for former president trump, and also create huge problems for president biden when it comes to what it says about his age and memory. >> well, a couple of things. i do think that the cases are different. but there is a baseline that you don't want classified documents outside of a secure location. the difference, though, is that donald trump, when given the opportunity to return those documents, he did not. he did not cooperate because he believes he has some other authority to do things that he doesn't after he was president. joe biden, on the other hand, did allow for the documents to be turned over and cooperated with the investigation. i think it was important in both instances, because of the polarized nature of our society, that both of those have special councils, which

they did, and the findings landed where they lay. now, in regards to the commentary about his age, sure. the other side will use that to their advantage, and politicize this in a way that i don't think either case should actually be done. i think they should just let them handle it in a court of law. but do i think this will be the thing that folks use to decide when they go to the ballot box in november? i don't think so. both sides could potentially use it against one another. definitely the trump campaign will use it against joe biden, but at the heart of it we hope we can get this election season outside of the courtroom and actually have candidates talking about issues that matter most to voters. but because of the collocated and divisive political nature we are in, we find ourselves in this wash repeat cycle with election policy in the court. literally what happened in the supreme court today, and the findings in the special counsel for joe biden on this classified documents. >> all right, thank you for

that. >> we want to head back to mj lee at the white house. the white house just put out a new statement about robert hur's report, and it goes in on the description by the special counsel of president biden's memory. tell us what it says. >> reporter: yeah, this is a new statement we have just received from the special counsel to the president, and it says that they are pleased that the investigation is concluded, that no criminal charges were warranted in this investigation, and it really leads into the fact that as we were talking about before, president biden has cooperated as a part of this investigation. it talks about how the team quickly self-reported the classified documents. it immediately returned to the government these documents as soon as they were found. not only was there no obstruction, the statement says the president's cooperation throughout this 15 month investigation has been extraordinary. it also says

that the president takes classified information seriously and strives to protect it. it says that mistakes, these kinds of mistakes, when documents of this nature are packed are unfortunately a common occurrence, basically saying that this kind of thing has been seen with other people, other administrations in the past, that it isn't just president biden and the folks around him who may have made this kind of mistake. notably, at the end of the statement, it says we disagree with the number of inaccurate and inappropriate comments in the special counsel's report. it does not say what in the report they find to be inappropriate, that obviously is a pretty charged word. it is not just saying that they disagree, they are saying that they find some of these comments to be inappropriate. one of my guesses would

certainly be some of the comments we talked about earlier, referring to and talking about the president's memory issues, his recall, during the interview he had with the special counsel's office. but obviously this is sort of the talking points that we are going to continue to see from the white house and allies of the president. they did not think that this was anything that warranted criminal charges to begin with, so they are certainly celebrating that, and they want to sort of emphasize that none of this was intentional, that this is somebody who takes a matter of classified documents seriously, and that there was full cooperation throughout the process. and even if donald trump's name is not mentioned, that context is really clear, and the contrast that they are trying to draw between president biden and the circumstances here versus former president trump and the circumstances surrounding those sets of documents. that is very, very clear that that is what they are trying to do here. >> all right, mj lee live at the white house. we are going to get in a quick

break as we follow this breaking news. special counsel report about the president's handling of classified documents before he was president and after he was vice president. no charges going to be filed, but some of the most damning revelations in this having to do with his memory during the process of his interviews. some specifics there about what he did and did not remember. we will have that after the break. it is going to be very important.

we have been following breaking news into cnn this afternoon, really scathing detailed in this report by special counsel robert hur, detailing that president

biden, before he was president, after being vice president willfully retained classified information. the special counsel determining that president biden will not face charges. the legal aspect of this case, perhaps a relief to the white house. but there are details here that politically are very difficult for this white house to move forward in a very contested, tough campaign with donald trump. >> that's exactly right. legally it's not as if his hands are clean here, because even though they say they will not be bringing charges, they did find in this report that he willfully had retained some classified information and had disclosed it to a ghost writer, which is not nothing. that is significant. part of the reason why no charges will be brought was because they thought that he would appear to a jury as a sympathetic, well-meaning elderly man with a poor memory, and why is that? here are the specifics from the report. quote, 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, if it was 2013. when did i stop being vice president, that is a quote of what he said. and forgetting on the second day of the interview when his term began. in 2009, am i still vice president? he did not remember, even within several years, when his son bo died. and his memory appeared hazy when describing the afghanistan debate that was once so important to him. >> this comes at a time, literally days ago, when president biden made several remarks that were inaccurate. they appeared adequate mystic relating to public figures that had passed away previously. you can imagine that the white house is going to have to do some cleanup here. let's go to the white house now with cnn's mj lee. we

understand that the white house has put out a statement responding to the details in this report, and they specifically mentioned that they believe that the special counsel treatment of president biden's memory was inaccurate and inappropriate. what else is the white house saying about those details? >> reporter: this is, to be clear, a new statement that we have just gotten from the president's personal lawyer. that is, of course, bob bauer. it, too, says that as expected from the start as special counsel concluded that no criminal charges were warranted. but then 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 the 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 the length 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 one out of 47 witnesses, more than 77 million documents, using millions of dollars of taxpayer dollars, essentially, is what bob bauer says. this is us seeing in real time 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 are just seeing this now, much later than they would have hoped.

they thought it could have been a relatively fast investigation, they certainly did not think and were frustrated when they realize that it was going to take this long and that it was this extensive. there have been, also, some simmering frustrations about merrick garland. 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 senior roles in the trump administration, there was some thought 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 out, as well. 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 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 adhere to. it says they should not have violated well-established department norms, and essentially trashing the subject of an investigation. this is something he has siding from a former department of justice inspector general statement. 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 saying that as a completely inappropriate and really irrelevant, and i think they would certainly say that they don't agree with those conclusions, either. >> mj, please stand by. we want to bring back evan perez. 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 you make of that allegation of investigative excess? >> let me provide a little bit of context as to what bob bauer is getting at. the direct comparison, what he is trying to bring up, is if you remember that july press conference when they closed the hillary clinton email investigation, 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 is the context that power is referring to, and he is making a comparison, really, to that episode. because everybody since then has said we can't do that. that is not the way the justice department behaves. we cannot go out and trash people when we are declining to bring charges. the only way 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 is impossible to not have that report also become public as a result of that. and so, while i can understand the frustration that you are 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 counsel's that we have now in this building, all of their reports will be made public with as minimal reductions as possible. in this case we have seen no redactions from reports. so if you are merrick garland, you would be criticized either way you went on this, right? i think that is the reason why you see this report being so detailed in the findings. >> let's go ahead now and read, we have actually a statement here, if i can pull it up and email from the president

himself. >> this is from president biden himself, and it is 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 report he details hazy conversations between president biden and his ghostwriter going back to 2017. 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, that 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 and october 8th of last year, even though israel had just been attacked on october 7th. i was in the middle of handling an international crisis. i believe that was what i owed the american people so that they could no 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. >> let's get our viewers up to speed here, to remind them what is happening here. which is the special counsel. we were talking about robert hur, the special counsel that 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 in numerous locations. that biden did cooperate in this investigation with.

so now you have these findings that he willfully retained classified information and he shared it with a ghostwriter. but he is 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, and pretty excruciating detail. this has been seized on the legal part of this, by republicans. specifically how judiciary committee, the republicans on the 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. there is another part here, which is does this politically and validate that case? and that is a much more open question.

let's deal with some of the legal issues here as we get to laura coach, are cnn anchor and chief legal analyst. what stands out to you here? >> first of all, what an unbelievable report 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, talking about the current president of the united states for behavior when he was that then vice president and following that. why that is so important is because those two charges, or those two allegations certainly track, but one resulted in not a prosecution, the other did. remember, both this person, special counsel robert hur and jack smith have been on parallel tracks, investigating the retention of classified documents. where they vary is the meat of the matter, breanna. they vary because joe biden

voluntarily alerted the public and special counsel, at that time doj, that he had the documents in his possession. trump had to be subpoenaed and continue 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. 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 retain meant and not an inadvertent retention of documents. and that it would have not been an easy case to prove. then there is that damning part about how a jury might see this person. elderly, well-meaning, and result in his behavior. that is a very scathing result

of a reason not to prosecute, but it does vary in a meaningful way. ultimately, the political aspect of this will undoubtedly rule the day in conversation, but pragmatically speaking, if you are a prosecutor and you are 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 they could have done so, so they decided not to prosecute. the other aspect is what are the optics in terms of how i am 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 councils, jack smith and robert hur was why? because optically he did not want there to be some notion that one person who had an eye towards other prosecution on

donald trump would decide both issues. this is important to the optics politically at how people will see this. how can it be that both have been sent willfully retained, and only one ends up in a prosecution? this is the narrative and talking point that we use in defense of donald trump, and it will be the exact thing talk 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 should not prosecute. they thought they could, in the donald trump area, and that is very distinct. >> 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. because he deleted some audio notes. >> obstruction. >> obstruction after he deleted some audio notes, conversations

he had 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 ghost writer cooperated completely with the investigation and turned over some of the most damning evidence. >> what you are saying, really, is prosecutorial discretion. the way the sausage is made in congress is not pretty. it's not pretty and the department of justice, either. but the consideration as to why you are going to in case that sausage are all about how you can prove your case, and cooperation goes a long way. why? not because it is a way of kissing up, but because it undermines, before a jury, the notion that someone has intentionally engaged in behavior that was nefarious and criminal. the fact it 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. the notion that he was trying to , talking about trump, destroy 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 come into play yet again. but to focus the issue from the legal perspective specifically, remember the burden of proof for willfulness is always going to have that intent and that mens rea, the state of mind component. the more you do to try and demonstrate your cooperation or your inadvertence are ways that suggest that once you are made aware that you took corrective action can go a long way in terms of undermining a prosecutor's ability to really make the case. that factored in very largely here. but just to be specific with the audience, the disclosure was made to a ghost writer in furtherance of a book. i think the book was called promise me, dad back in 2017.

that disclosure to that person was where biden allegedly said something along the lines of i found the classified documents in the basement or the location they were in. 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 items and beyond suggest that it was not intending to be kept secret and sacrosanct as the way it should have been or divulge to somebody else. that factored into all this. to compare this most directly with the images we have seen from the mar-a-lago case, the positioning of the documents, the accessibility of 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. >> very good point. laura coates, thank you so much.

if you could stand by for us, we are 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 will be right back.

we have been following major major breaking news into cnn, a cancel deciding that president biden's national security information, the report finding that president biden willfully retain classic -- classified information, but ultimately will not face charges . we are looking at images extensively 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 in roughly 2017, shared some of that pacified material with a ghost writer that was helping president biden write a memoir in the details of those interactions 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 a general election. >> they certainly don't. they speak to his memory. this will be something politically seized upon. you have the white house saying, some of these things are inappropriate. it makes you wonder if this is what they are referring to in the report. i want to read a part of it. it says quote, mr. biden's memory also appear to have significant limitations both at the time he spoke to the ghost writer in 2017 as evidenced by the recorded conversations. today, as evidenced by his reported interview with our office. mr. biden's recorded conversations from 2017 are awful-- often painfully slow, with mr. biden struggling to remember events and struggling at times to read and relate 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, for getting on

the first day of the interview when his term ended quote, if it was 2013, when did i stop being vice president, and for getting on the second day of the interview when his term began quote, in 2009, am i still vice president. he did not remember even within several years when his son, beau, died. his memory appeared hazy when describing afghanistan, that was once so important to him. let's bring in paul to talk about what all of this means. obviously, the white house saying, this is good news that he will not face charges, but certainly not all the news for the president. what do you think hearing about this? >> right. i think good news, but 270 days until the election. there is no charges here. that means, there is 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

involving classified documents. biden claimed, i was investigated by independent counsel and i was cleared, a lot of cheap shots, nothing to do with the law. i was cleared. maybe mr. trump will be cleared, but he has been indicted, though. biden was not even charged. mr. trump will have the right to defend himself in court. maybe he is innocent. he is looking at 91 felony charges, mr. biden is looking at zero. >> when we look at the classified documents case that donald trump is facing, there are obviously major legal distinctions, but if you are 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 is going to be easy for a prosecutor to make haste in that context that president trump is facing the same kind of considerations that president biden is facing in this decision? >> they may. i think that the argument that everybody does it

is probably one defendant's use in all kinds of cases, i am not sure how effective it is. the prosecution will have to make the argument that no, in fact, some people have classified documents that travel with them and leave the office, okay. what do you do when the government informs them of that? it looks like we know now and president biden cooperated completely, turned it over. the allegation against donald trump is just an allegation. he did not tell the truth that he instructed the government-- obstructed the government's ability to get them back. just charges, not environments -- indictments or conventions. that is the difference between a mistaken criminal act. >> but paul, you are a political consultant. let's talk about the political side of this. legally, these two things may be different, politically one, republicans will see on this and there is something 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. 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? >> you are exactly right. that is the problem for joe biden. it is not that 270 days before the election he was cleared of any charges in this matter, it was that a guy who is 81, will be 82 when the election comes around, most voters already think he is too old for the job. if this feeds into that narrative, and it does, then, it is really problematic. that is where the people i am sure are really worried and quite upset. he has got a show. i have been with a roman-- room

with him, but have not talked to him. most americans have not been hanging around with him, they want to see him. they will have to put him out more. i understand he does not want to do the super bowl interview. it mixes politics with sporting events, bad decorum. they will have to put him out, show him. i have talked with a former national security official who served in the republic and democratic in ministration to brief joe biden until very recently has said, very sharp. they will have to make that case. everything that happens to biden, weibel process, is he too old? everything that happens with trump, is he too corrupt and crazy? they each have monumental negative ratings and negative problems. you are right, that frame with biden is anything that goes to, he is too old to do the job. that is exactly what special counsel did. his lawyer is squealing like a pig stuck under a gate, because

it has nothing to do with the case. it doesn't seem-- i am a democrat, i like biden, it seems like a real cheap shot. people who have been under oath are really careful. sometimes, they will say, i can't remember if they are not absolutely precise. he was probably just under a lot of stress, it was the worst day of his life. to me, that seems like a cheap shot. if i were running a trump campaign, i would use it. it is coming from independent counsel. >> i want to push back on the idea, paul, that the white house would put president biden out there more here just this week, they are 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. >> yeah, but trump has the exact same problem. let me talk about biden, i don't want to change the

course. i have known biden over 30 years, he was the same way 30 years ago. the gaps are built in to the biden appeal. he has been the same guy. some of the obama people use to snicker about it, but he did not hurt him when he ran in 2020 and beat donald trump. and they can turn the tables and say, wait a minute, donald trump was saying that nikki haley was in charge of security at the capitol? he was saying, we would get into world war ii if joe biden gets into the white house, he has a long list of really frightening mental gaps of his own. >> paul, we thank you so much for joining us for this breaking news. special counsel robert hur not recommending obviously that there would be a charge of handling of classified documents, but obviously raising a lot of questions. >>