security, and added that president biden portrayed himself as an elderly man with a poor memory who would be sympathetic to a jury. our investigation uncovered evidence that president biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen, the report said. but the evidence does not establish mr. biden's guilt beyond a reasonable doubt. this is the special counsel investigation by robert hur who was confirmed under donald trump in to president biden's handling of classified documents. a reminder of what special counsel hur has been looking into. for more than a year. in the after math of the discovery of dozens of boxes containing thousands of government documents, including 300 with classified markings, some labeled top secret that donald trump took with him, and both withheld and allegedly hid at mar-a-lago, president biden's lawyers did a preemptive search

of their own to see if biden took anything after he left the vice presidency in 2017. joining us is mike memoli. good to have you. a mix of good news and bad news for the president. >> yeah, katy, for those who remember what happened in 2016, involving former secretary of state hillary clinton, the democratic nominee at the time for president, of course we remember there were no charges but a pretty damming report from the attorney general at the time, james comey. the initial top lines were reading of this report find a similar situation. that there are no charges recommending here against the president, but some damming details, including statement that he willfully retained documents after leaving office. the point you highlighted about how the special counsel and his team found their interviews with the president in which he, as it was put, his memory was significantly limited, are certainly going to be weaponized

by the president's opponents. we also see an interesting moment as part of the investigation that the president's ghost writer, of course the former vice president at the time as he was working on his book after leaving office had recordings of president biden, the former vice president at the time, talking about having covered classified documents in his possession at the time. so that is a significant moment that comes back from 2017, according to the special counsel report here. so let's just step back and underscore the most important fact, which is we're just reading this report as it's being made public at this moment. there's going to be a lot of details. we understand it's a 400-page document. these are just literally the top lines we're reading at this moment, the house judiciary committee, republicans are already out accusing a double standard of the justice department for not bringing charges against the president as we also of course see president biden's likely opponent in the

general election, former president trump with a different investigation here into his handling of classified documents. one thing that we also understand to be true from this report is that there is a very clear distinction being made between the ways in which former vice president biden handled classified documents and president biden worked with the justice department during that investigation very cooperativity, his team did, there were multiple searches of his home in wilmington, delaware, as well as a search of his beach home in rehoboth beach, delaware. versus what donald trump, the obfuscation, the resistance to any form of a search, any form of cooperation, so that is something that is coming through this as well. but, katy, certainly this is a moment, we are about ten months before the election. i think a lot of democrats are going to be seeing top lines and having a lot of unfortunate flashbacks to 2016. we expect to hear from the white

house counsel, the president's own personal attorney, bob bauer in short order. we did hear from them already today in a significant way. there was a privilege review. that's an option to the white house to go through this report to potentially mark items in the report that they believe should be withheld because of executive privilege. the white house saying that out of the president's long standing commitment to transparency here, that they choose not to invoke privilege over any of this, and so i think that is ultimately also going to be an important part of this discussion, which is that the biden team is going to be underscoring, wait in which they cooperated at every step of the way with this investigation, versus what we have seen from former president donald trump. but as we look through the initial findings of this, there are certainly some easily weaponized political opportunities here for the president's opponents. >> yeah, and i remember a lot of what donald trump is facing, he's facing because he didn't hand over the documents.

the national archives asked for the documents. the fbi asked for the documents. and he didn't give them over. the fbi had to do a search of mar-a-lago to get them, and they still didn't get all of them. they may not got all of them, they believe. my phone is going nuts with all the stuff that's in this report. i want to read a little bit more. about a month after he left office as vice president in a recorded conversation with his ghost writer in february 2017, biden remarked that he, quote, just found all of this classified stuff downstairs, the report said. biden was believed to have been referencing classified documents about the afghanistan troop surge in 2009 which biden opposed. we have this from the house judiciary, the gop-led house judiciary, it's a post on x. just in, special counsel robert hur recommends no criminal charges against president biden and classified documents case, despite the fact that hur acknowledges biden willfully retained and disclosed

classified materials after his vice presidency when he was a private citizen. and they write double standard as you can see in capital letters. joining us now is nbc news justice reporter ryan reilly. you have read the entire report. >> not quite. off the bat here, hur's report actually directly contradicts what they are saying here because it isn't a double standard. hur's report explicitly says that there is a big difference between donald trump's situation and joe biden's situation here. even though hur's report is very critical of biden, those are not in the same world, the same realm. it explicitly says that. it brings up the donald trump situation, and lays out the distinct differences, and why the donald trump case is being brought forward as opposed to why they are deciding not to bring forward the joe biden case, including the fact that joe biden extensively cooperated. the big line was this portrayal of the sitting president of the

united states as portraying himself as an elderly old man with memory issues. they expected if this were to go to trial, that's how they portray themselves. during their interviews with the sitting president of the united states, that he portrayed himself as an elderly man with a lot of memory issues, and that's what they would expect him to do in front of a jury, and one of the reasons they don't think they could get beyond a reasonable doubt if this theoretically were to go to trial, along with a number of other reasons why they don't think this case should have been brought forward. the only solution they could have to this, it's like the nail and the hammer, right, this is a federal prosecutor. their only solution, are there criminal charges here, are there not. they don't think the right remedy was to bring criminal charges against the sitting president, even though they set aside the issue of whether or not you could bring charges against the sitting president. they decided this on its own, and said, even if we didn't have

to deal with the issue, if you could charge a sitting president, the facts specific to the evidence uncovered here, katy. >> there's more detail about the way that special counsel hur distinguishes this case from donald trump's case. i'm going to get to that in a moment, i want to go back to memo on the point ryan was making about the way they believe he portrayed himself in front of a jury. he was elderly and he had memory issues. this is a man who's running for president again, and the big knock on him, one of the biggest knocks from voters is that it seems like he's elderly with memory issues. that's politically bad, is it not? >> yeah, katy in the very early moments as we look ahead to november and the general election and the issues that we know are of top concern to voters about the president in seeking a second term, the legal issues almost seem secondary to what you just outlined there. we know that that interview with the special counsel occurred in

a two-day period in october. this was weeks before the midterm, excuse me, this was last october, excuse me, let me correct myself there. this is a president who obviously has a demanding day job, and the special counsel was asking him very specific detailed questions about things he would have done at that .6 years prior. i think there will be certainly some pushback from the white house about just how much anybody would remember specific things that they were doing, you know, five years ago, six years ago at the time. but the portrayal and the use of the language in the special counsel report, i can already predict will certainly be strongly criticized if not publicly, then certainly privately by the white house. but it is important to look at what the president is accused of forgetting in those -- what details he's accused of forgetting in the interviews, or not recalling, and this has to do with the issue of reading information to an individual who was helping him to write his book, promise me, dad, it was

published in 2017, and during the process of gathering research for the book and the process of discussing with his ghost writer what might or might not be in the book, he discovered documents in his possession that he said were classified. now fast forward to early last year, when we find out that this investigation was underway, in which at the time there was a portrayal of surprise on the part of the biden team that some of these documents may have inadvertently ended up in the president's personal possession after he left office. there does seem to be a disconnect between the president's own words as a former vice president in 2017, with how this was initially presented to the public last year. but certainly some difficult language in terms of the president's age that the public is going to be seizing in on for sure. >> senior white house sources told msnbc that the biden interviews as you know, mike, with robert hur, the special counsel, took place on october

8th and 9th and they point to those days in particular being pretty hectic days, remember october 7th when hamas invaded israel, and there was a lot on his mind a lot going on, and they're pointing to that moment being particularly crazy and why he might have memory issues on those days. >> yeah, such an important point, katy. we were surprised when we learned about the timing of the interviews for just that reason, given the demands of any president, certainly a president dealing with a chaotic, volatile situation, that being the time to sit down and speak with lawyers is a perfectly difficult time to do that. this is not going to stop republicans from seizing on the issue. we should now separate, of course, what republicans will seize on and what's actually important. the fact that ultimately the special counsel here is not choosing to bring charges and

saying that while he may have willfully retained the documents, the standards of not bringing charges against a sitting president, they would not have brought charges against him in this case is an important detail as well. >> we have images, which i know we're working on getting up there. there's an image of a box that contains classified documents, and it's a broken box, and it looks like, you know, it's in a storage area that is pretty cluttered. suggesting that they were forgotten down there. mike memoli, thank you. stick by, though, because we're going to come back to you. let's go to our legal guests, lisa rubin and chuck rosenberg. robert hur makes a distinction, and specifically makes a distinction between what he found president biden to have done and what he says president trump is being accused of. what is that distinction? >> i think the distinction has to do with the level of cooperation he gave to the department of justice and the fbi, the interest that he had in voluntarily searching other properties beyond where it was

initially found, and as a part of that cooperation, but also there was no willful retention after this was called to his attention. it may have been the case that president biden should have known he had classified documents in his possession or that there was classified information in the notebooks he took. once he became aware of the problem, there was no evidence that he continued to willfully hold on to them. that is belied by the evidence against former president trump who for over a year plus, katy, engaged in a hide and seek with investigators from the national archives, and then with the fbi and the department of justice. to continue to obfuscate and hide and move boxes from various plays in mar-a-lago to play this shell game about where his quote unquote documents were. >> a little bit more, the report says they found documents up to the secrecy level of top secret, which means the documents aren't to be shared with any foreign

countries. they're classified at the top secret level. they also say they found sci level documents, which are top secret documents that conclude sensitive, compartmentalized information, i know the terms are familiar to us and our viewers because we have talked about them so much regarding donald trump's handling of classified information. that being said, robert hur does write, several material distinctions with the trump case, quote, unlike the evidence involving mr. biden, the allegations set forth in the indictment of mr. trump, if proven, would present serious aggregating facts. he refused to return the documents, obstructed justice by enlisting others to destroy evidence, and then to lie about it. i do think it is interesting in laying out this case, robert hur seems to be acknowledging, even though doj never says they get involved in politics, he is acknowledging the political moment by distinguishing this case from the one that donald

trump is facing. >> well, katy, it's distinguishable. i mean, so first, i want to say, i think mr. biden's mishandling of top secret information is deeply disappointing. for those of us who held security clearances when we were in the united states government, it's beyond my imagination that someone would be so careless or so reckless with this stuff. that said, i think it's important to underscore what lisa was saying, you know, what is and what is not a double standard. imagine lisa and i both had top secret information in our respective homes. we both cooperated fully. we didn't obstruct justice. we turned everything over when we were asked to do so, and lisa was prosecuted and i was not. that's a double standard. >> yeah. >> but if you have those distinguishing characteristics that lisa talked about, and i would even add one more to that, mr. trump asking his own lawyers

to make stuff disappear. >> go away, yeah. >> when you have a series of acts that distinguish lisa's case from mine, aggravating factors, that is to a prosecutor, that is music, right? because when you obstruct justice, that proves intent. >> let's remind people again. i went through this quickly at the top. it bears repeating. the national archives noticed that there was documents missing that donald trump had, they knew about. they knew there were things in their possession -- there were not things in their possession specific documents that they knew donald trump had and they were looking for, and so they went to the trump team, and they said we need these documents back. you might have taken them with you, can you return them. he didn't do that. >> i want to underscore the point, they wrote the letter as the presidential records act designee, in may of 2021. it wasn't until january of 2022 that they got back the first 15

boxes, and then for several months thereafter, former president trump aided by the defendants in the case in florida, and many others, either knowingly or unknowingly continued to play games with the department of justice and the national archives about the existence of some 300 classified documents. >> it's not just donald trump who was doing it. he engaged some of his employees, wilt nauta to remove things. these are pictures of the documents found in president biden, former vice president biden's delaware garage. this is where the documents were found in that box that's deteriorating. i see chuck rosenberg shaking his head. he's handled classified documents, and what he was saying is this is not the way you handle the nation's secrets. joining us is the host of "inside with jen psaki" and

former press secretary for president biden, i think there are a lot of people out there asking a pretty simple question, what the heck? >> yeah, of course, look, i think we all remember last fall when the information was trickling out about the classified documents, and his supporters were asking what the heck. but i think what a lot of your guests, your legal guests have been outlining here is pretty important in terms of how people are digesting this, and how they will digest this. one, robert hur, who was appointed by donald trump, important to note, doesn't mean it changes anything. highlighted specifically in here the difference between what biden did, and what trump did. they're also the piece that there has been understandable focus on, that he wrote in his report here. about how they are betting, he would have played it in a trial. which is also important to note. if you're sitting in the white house, katy, there's no question, no one is seeking a

special counsel report, if you're sitting in any white house, you don't want that. for them, i expect you're going to point out things, including differentiating information, the fact that the president and his team participated with the special counsel in their ask for these documents. and of course the differences between them, and i think that's what we will hear, continue to hear from them in coming weeks. >> president biden will say, don't compare me to the almighty, compare me to the alternative. compare me to donald trump, and i'll find that i'm better, and that worked in 2020. definitely. in 2024, it's going to be a matter of turnout. does president trump turn out more engaged and excited voters than president biden does? and there are questions about the enthusiasm there, because there are voters who will say that they're disillusioned, they don't feel like government is working for them, and they will say they don't think the options are great. they don't like president biden as an option. they don't like that they're

both so old, they don't like that they both seem to have memory issues. this is going to underscore that. if you're in the white house right now, are you worried not about comparing biden to trump, but having voters who just toss up their hands and say, i don't want to participate in this. >> well, first, i would say, one, i've worked in the national security world, and i also think that the handling of classified documents is a very serious issue. it's also not to date, and this could change on either side, be an issue that massively moves voters one way or the other. today, with this reporthe supre arguments about whether or not the former president had participated in an insurrection, which the colorado supreme court had already ruled, and whether that should kick him off the ball lot. despite the fact that a lot of legal experts and eagles sitting at the table with you have predicted they're not going to rule that way. this is all happening. this is the split screen of the choices the public is facing.

so i think it's pretty hard to predict right now, just because it's february and the election is in november, what the turnout will be, but what i will say for democrats out there who are worried, and you should always be worried until the election's actually happened. we have seen in the special elections, we have seen even in new hampshire when there was a write-in campaign, that actually the president's supporters turned out more than people expected. we'll see what happens in november. there's a lot of organizing to happen between now and then but the split screen of the choices is what they're betting on. >> listen, i covered the primaries in 2020, and i, you know, the turnout for the now president's events, biden's events was low. it didn't say anything, good news to me, listen, he did go on and win, getting more votes than anybody has gotten in the history of this country. that was then, let's see if that holds for the next election. nobody knows, but i do wonder, if having this narrative

reforced which the republicans are going to use, and people feel just by looking at the president when he's on television. this narrative is not one that is very worrying. >> are you talking about the narrative that he's 81 years old, which is a fact or, what narrative? i mean, look, trump, the choice in all likelihood, katy, right, is going to be between two men who are three years apart. they are both older than i would think a lot of people in the public would like. if you ask them in terms of the candidates they want to vote for. at the same time, the choice is going to be between them. so the choice is ultimately going to be between somebody who in the biden campaign's view, and this is what they'll argue, right, was guilty of trying to overturn the election, overturn the will of voters, and somebody who was not, and they're three years apart. they're well aware, and this is important for everybody to talk about, that one of the challenges they have is what you see popping up.

you just mentioned that people have concern about age, have concern about whether he's up to the job. there is an element of that that has existed for years, and some of it was pushed by the right wing, effectively about president biden despite the fact that trump is only a little bit younger. they're aware of that, and they need to figure out ways to address that including having it out in the country, out on the trail, giving speeches like the democracy speeches he gave, but again, what's going to be crystal clear, however long nikki haley stays in the race, right, she's in it still, this is ultimately a choice between them, and that's going to become more crystallized in the coming months. that's good for the biden campaign and how they see it. >> they are three years apart, and let's not cover donald trump closely. he is a lot different than he was eight years ago. he is not the same candidate that he was in terms of energy, in terms of response time. there is definitely a change there, as anyone would have in eight years. you get older, things kang

change in your life. i want to go back to the photos. i'm going to go back to chuck rosenberg on this and show those photos again. i know i described your reaction. give me your reaction in words. >> you fairly described it. i'm deeply disappointed. look, again, i can draw distinctions between the way mr. biden conducted himself admirably, i think, once it was discovered, and he cooperated with investigators, and mr. trump who tried to obstruct the investigation! there are material differences. >> many. and lisa articulated them, and i don't need to do it again. that said, holding a clearance is a privilege, it's not a right. it's a privilege. and you understand that when you are granted a clearance. there's a deep background investigation. you're read into the programs, you sign documents acknowledging your responsibilities. we wouldn't even have conversations in the hallway, katy, about privileged information. we'd go into a special room to

do that. mistakes happen, and if this was just a mistake, inadvertent, negligence, carelessness, recklessness, whatever it was, mr. biden subsequently handled it in the right way. but ending up with that stuff in your garage, that's bad. >> yes. and i do think it is worth repeating again, this is not the same as what donald trump is accused of doing. >> and there's one word in this report -- >> she's facing dozens of criminal counts for what he did with the classified documents. >> he tried to obstruct justice. >> right. when a prosecutor hears that, it turns a case that might be set aside and not prosecuted into one that becomes prosecutable. i mean, that might really be the decisive factor. when you have obstruction of justice as a federal prosecutor, it helps you prove intent, always the hardest thing to prove. i take your point, there's a material difference between the conduct of two men. it doesn't make the fact that they found stuff in his garage

okay. >> that's what, you know, chuck, you just got to the heart of what i wanted to say. in the description that robert hur gives of how he thinks president biden would portray himself in a courtroom, he says the picture that he got from interviewing him and from interviewing others was that of an elderly, well intentioned man with memory problems. i don't know why he felt it necessary to reinforce the political framing around president biden that trump and his allies have been so successful in pushing. push away the elderly and the memory problems because what you have at the heart is that this was a well intentioned person who when a problem was brought to his attention with people around him including a well qualified set of lawyers tried to do everything possible. and he gave it to us in its fully unvarnished form, even though it is embarrassing to

him, and disappointing. >> i want to ask about classified documents and the handling generally, broadly across the government. i want to go to our nbc news capitol hill correspondent ryan nobles because lawmakers on the hill, unlike what you would see with donald trump reaction, you get a lot of gop lawmakers who are itching to get to the cameras and talk to reporters about this report. what are they saying? >> reporter: important to point out, and your panel have done a terrific job breaking down the legal implications. the fact that he's a sitting elected president, and the fact that he is running for reelection make the political costs of the situation perhaps just as grave. he's obviously going to escape any sort of legal culpability. when you're president of the united states, there are other mechanisms to penalize you for potential wrong doing and the mechanism that is in the hands of people that oppose him most politically is the opportunity to impeach him. and there's already an

impeachment inquiry underway. house republicans have said before that the classified documents investigation was a part of their impeachment inquiry. it certainly has not been front and center. they focused a lot more on his son and his brother's business dealings, foreign and domestic, and that has of course been what they have been touting, but i think the question needs to be raised and no one has specifically said this yet, other than the fact that it was the house judiciary committee who was a part of the impeachment inquiry that first brought to light the findings of special counsel report is whether or not this becomes part of their impeachment inquiry. do they make this a part of why they are continuing to investigation the president of the united states, and you've already seen many republican members of congress and people connected to the former president, donald trump, suggesting that there's a two-tiered system of justice here. they're pointing to the fact that the special counsel did deduce that these classified documents were improperly handles, and so do they use that

as a foundation for adding this to the impeachment inquiry. i do not think that is out of the realm of possibility. the impeachment inquiry just frankly has a different standard than the legal inquiry does. you know, a legal, a prosecutor needs to go down a road where they believe they can get a jury of someone's peers to convict them in a court of law, that's not the purpose of an impeachment. an impeachment inquiry is to whether or not you can get enough votes on the house floor to then send what essentially amounts to a charge through the impeachment inquiry to the senate for a possible trial. isn't going to lead to joe biden being thrown out of office. there's no universe the senate would convict him on the charges. it's another political problem for joe biden because the investigator power of the impeachment inquiry lies in the hands of his political opponents right now, and you have to imagine this is something they would seize on given the first

opportunity. >> ryan nobles, thank you very much, we're going to sneak in a quick break. don't go anywhere. and also donald trump at the supreme court, when we come back. we come back un the show. so, we switched to verizon business internet. they have business grade internet, nationwide. (vo) make the switch. it's your business. it's your verizon. okay everyone, our mission is to provide complete, balanced nutrition for strength and energy. yay - woo hoo! ensure, with 27 vitamins and minerals, nutrients for immune health. and ensure complete with 30 grams of protein. (♪♪) [ tense music ] one aleve works all day so i can keep working my magic. just one aleve. 12 hours of uninterrupted pain relief. aleve. who do you take it for? and for fast topical pain relief, try alevex. (sigh) if you struggle with cpap... you should check out inspire. no mask.

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when you buy one unlimited line. plus, get the new samsung galaxy s24 on us. back with our breaking news, the robert hur report on president biden's handling of classified documents, decline to go criminally prosecute president biden, saying if he was not president, this office would not prosecute president biden for what he did.

joining us now, nbc news white house correspondent mike memoli, i understand you have reaction from the president's lawyer? >> yeah, that's right, katy. in fact, we have reaction both from the white house counsel representing the office of the president, but also bauer, who is the president's personal attorney in this case. both of them make two important points to the discussion we were having earlier. they're underscoring the extensive cooperation that the president, that the white house provided with the special counsel's investigation, that is something both of the statements underscore, but they also both take issue with the both excess as the president's personal attorney, bob bauer puts it, the investigative excess that was entertained here and also tone of the report itself. let me read from the white house counsel, we disagree with a number of inaccurate and inappropriate comments in the special counsel's report. nevertheless, the most important decision the special counsel made that no charges are warranted is firmly based on the facts and the evidence. this statement also indicates

that the simple truth is president biden takes classified information seriously and strives to protect it. it notes that there have often been these kinds of issues, not just people occupying the executive branch but members of congress as well, and now that this investigation has concluded, president biden plans to take new substantiative action to help prevent such mistakes in the future. and he will announce it soon. so that's an announcement we will very much be looking forward to. i mentioned the statement from bob bauer, the president's personal attorney in this case, he said the special counsel could not refrain from investigative excess, perhaps unsurprising given the intense pressures of the current political environment. i think that is something we are likely to hear more from the president's allies here, essentially that this case, this special counsel should not have been open in the first place that the facts of the matter were very clear. the cooperation was clear throughout, and that as the special counsel ultimately concluded, no charges were warranted. we should note, katy, though, as our team has been digging

through this report, there are substantial examples offered of ways in which biden, while serving as vice president would retain information that was classified after briefings and meetings for example, and when he left office, knowingly retained that information as well. and so this is going to be something that we're going to continue to look through. but the bottom line from the white house counsel and the president's personal attorney here is that the extensive cooperation here and the conclusion are the most important take aways. >> we're going to have ken dilanian who's going to have more on what you were talking about there, but i do want to mention that the president himself has now released a statement. he says, 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. 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. that's from president biden. his statement directly on the findings of robert hur. joining me now is nbc news justice correspondent ken dilanian, seize on what mem was talking about, the willful retention of documents? >> reporter: it's crucial because i think it's getting a little bit lost here. this report clearly says, and this was surprising to me, i did not expect to see this, that president biden willfully retained and disclosed classified information. that is a felony, but then the report goes on to say that we don't think we could win a prosecution in this case for various reasons, including mr. biden's memory lapses and the fact that he's an elderly, well intentioned man. that is a deeply significant finding, and it's in two respects, one, they found that mr. biden was on tape speaking to his ghost writer back in 2017 saying the words i found all the classified stuff downstairs. this was when he was living in a home in virginia after he left the vice presidency working on a

memoir. and they also found that he disclosed classified information to the ghost writer throughout the process. it's not clear whether he remembered that. and that was crucial in terms of their findings about whether that could be prosecutable. because those, by the way, were the same documents they believe that were found by the fbi in mr. biden's home in delaware in the garage, and they were highly classified, and there was information about the afghanistan war. but willfully retained. and then secondly, the report says that mr. biden had notebooks that were sort of a combination of personal diaries and observations, but that included highly classified information that he knew it was classified, that he took them home anyway. this is very similar to what happened with former cia director, david petraeus who was prosecuted because he had notebooks, diaries that included classified information that he turned over to a woman that was working on a book about him. now, again, the hur report also puts a lot of this into context,

and says, first of all, very different from the trump situation as you have already covered. also, there's a history of presidents taking home classified information, and it talks about ronald reagan having notebooks that may have had classified material in it. that is a mitigating factor for president biden. nonetheless, here's a man dealing with classified information for decades, his entire year as a public servant and treated it in a cavalier manner, not by accident, or carelessness, but according to this report, willy. >> it raises a question about what they're doing with information they're given, and some of the information is not overly classified but maybe there's too much out there that's classified. i know that criticism has been leveled before. i do not know the contents of what's in these classified materials so i can't judge for myself whether this would be something that should not have been classified. there is that criticism out there, and makes you wonder how

many others might intentionally or unintentionally have this in their possession. thank you very much. joining us, nbc news investigator tom winter. what have you found? i want to mention there's no evidence according to robert hur that president biden shared information with any foreign person, which is key. >> yeah, i think that's an important note from our colleagues. just picking up on what you were saying, going through the document, there's an appendix that depose box by box, folder to folder, what the fbi found in various locations, they found and look for the documents, they took a number of documents that were either not marked classified or were marked classified in a way that was may believe at a lower level, it up classified them, folks will remember that from the hillary clinton investigation, a number of things that were determined to be classified after the fact. certainly some controversy about that, whether or not it's fair to essentially ding somebody for believing that it a document was classified or was even not classified, and just

confidential, and then upon review, it's something that is classified to a higher level, is it fair to criticize somebody for that or consider it legally, but i'll mention that that did occur in a number of cases here. i think a distinction to go back to a special counsel that our audience is well familiar with, which is special counsel robert mueller. at the end of his report, they came to kind of a conclusion without a conclusion, based on department policies and principles of fairness, we decided weld not make a determination as to whether the president, and there he's referring to donald trump, a crime. that's our decision then and remains our decision today. in today's report, special counsel robert hur goes much further. he said, look, we have established they're going to decline any criminal charges against president biden but he says we would do so even if we were not bound by the determination by the office of legal counsel that's at the department of justice that a sitting president may not be charged with federal crimes. what does all of that mean in

bottom lining it, katy, it means that basically robert hur said it doesn't matter whether or not we could or could not charge a sitting president of the united states, we wouldn't charge him period, whether he was president or not. i think that's an important thing to keep in mind. a couple of other observations going through this. obviously 388 pages, i don't think many of us can read that fast line to line, but there appears to be no reference to the son of the president of the united states, robert hunter biden who has his own legal troubles as we know there appears to be no reference to any members of the biden family, and that's something that we'll continue to comb through this. it all appears to be centered around president biden and his activities, once he left the office of the vice president. tom winter, thank you very much. coming up after a short break, we're going to talk about the supreme court, what did the justices say about donald trump remaining on the ballot in colorado? it was a fascinating and major day at the nation's high court. do not go anywhere.

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justices seemed skeptical of the state's decision to keep donald trump off the ballot, and here are three of the best examples. one on jurisdiction, as encapsulated by justice elena kagan. >> i think that the question that you have to confront is why a single state should decide who gets to be president of the united states. in other words, you know, the question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. so whatever means there are to enforce it would suggest that they have to be federal, national means. why does, you know, if you weren't from colorado, and you were from wisconsin or you were from michigan, and really, what the michigan secretary of state did is going to make the difference between, you know, whether candidate a is elected or candidate b is elected, i mean, that seems quite

extraordinary, doesn't it? >> no, your honor, because ultimately it's this court that's going to decide that question of federal constitutional eligibility and settle the issue for the nation. >> that's number one. number two, on whether it's actually congress that has purview over this, here is justice brett kavanaugh. >> section 3 refers to insurrection and raises questions about who decides what processes are to be used. that's ratified in 1868. the next year, chief justice chase opines that states do not have the authority to enforce that. >> and three, if the question of qualification is premature, as in does the constitution say that donald trump needs to be holding office before he can be disqualified from office, here is justice alito. >> section 3 refers to the holding of office, not running for office. so if a state or congress were

to go further and is say that you can't run for the office, you can't compete in a primary, wouldn't that be adding an additional qualification for serving for president? you must have been free from this disqualification at an earlier point in time than section 3 specifies. >> the answer to your question depends on how you interpret the word enforce. >> joining us now is ethics president noah bookbinder. you were in support of colorado here. how did you feel about today? >> we knew going into this that what our clients, the six republican and unaffiliated colorado voter who is brought this case, they were asking the court to do was extraordinary, even though we're confident that the constitution is clear, this was something that we have never seen in american history. so we understood that they get a

lot of hard questions, and they did. and that's appropriate. what we saw was the u.s. supreme court taking this very seriously, asking hard questions of both sides, really penetrating into the details of thises case, and we think that as they go through the briefs, as they consider the answers today, they are going to see that the law and the constitutions are clear. >> when you say the constitution is clear, what specifically are you arguing in terms of what the constitution says and what they should decide? >> what the constitution says is that anyone who swears an oath to support the constitution and then engages in insurrection is disqualified from office. one thing that you didn't hear much about today is whether donald trump engaged in insurrection. we think that the facts are very clear on that. we all saw it with our own eyes. and so then it comes down to these very technical legal questions. that's what the court was

struggling with today. but i think that the ultimate point that the constitution makes clear, that you can't be somebody who swore on oath to defend the constitution and engaged in insurrection, clearly applies. it has to logically apply to the president. i think the court really had a tough time with any sense that somehow there was an exception that only fit donald trump, that was the argument that trump's counsel was making, and if we don't enforce it here and now, it's unclear how it can ever be enforced. that's a real problem that the court is going to have to contend with as it makes its decision. >> do you suspect a scenario where the case goes back in front of the supreme court? do you think there might be another suit or another instance where the supreme court might have to decide whether donald trump was an insurrectionist and

not qualiied to hold office? >> it's hard it know without knowing what the supreme court might say, but that's a problem. if the supreme court were to take a position that this is premature and only affects holding office, then you have to figure out what's the proper way to bring that case. but if the supreme court leaves open that donald trump maybe disqualified, but it's too early to say that, then there has to be a time in the future where that can be addressed. and that would leave the country in a state of tremendous uncertainty after millions and millions of americans have voted, which seems like potentially a much worse place to go than the court taking up this issue and really working it out and addressing it now. >> that's difficult. thank you very much. back with us is legal analyst lisa rubin and joining us is mark joseph stern. you haven't had a chance to weigh in on any of this yet. i'm going to give you the first

bite of this aple. what did you see today? >> i saw trump winning at the supreme court, probably 9-0, possibly 8-1. it was really remarkable to see this consensus emerge across the ideological spectrum that somehow, some way, colorado had to lose this case. the only real debate was how. i will say some of the liberal justices, you played audio, she view this is case as a potential threat to democracy. she talks about how it's important for voters to be able to have their say in and courts not to take away that option prematurely, but some conservatives like kavanaugh said colorado's position would disenfranchise voters. it would be harmful to democracy. i'll just point out that in many others cases, justice kagan defended democracy, but brett kavanaugh and his conservative brethren have not. it was a little ironic hear

justices like kavanaugh and roberts suddenly come out swinging for voting rights and democracy when they have spent much of their careers allowing situates to restrict or revoke voting rights. >> there was a question about that. one of the justices asked if this would be a disenfrancement and the response from the lawyer for colorado was donald trump participated in insurrection and part of that was trying to disenfranchise millions of voters by say their vote department count and he should stay in office. he shouldn't have a second chances. >> i think that's a very powerful argument. really an argument from the 14th amendment, which according to murray and the plaintiffs in this case, was designed to protect democracy against office holders who would subvert it, who would wield the power of their office to affect antithe democratic results, to nullify

the rights of the people, including access to the ballot. but the justices did not seem to be buying that argument. and they resorted to this kind of argument from humility. they said over and over again, we're mere justices. a presidential election is approaching that is already dividing the nation. why should we be the ones to step in and ensure that millions of people won't be able to vote for their preferred candidate. now again, that kind of political caution and look to the outcomes to the consequences of the decision, that is very unusual for this supreme court. this court often say it is doesn't matter what the outcomes are. we follow where it leads. but i think it's possible that this court might have to sort of look away from the meeting of the 14th amendment to reach a conclusion in trump's favor that doesn't comport with the constitution, but does provide a result that the court feels comfortable with. >> but that, to me s remarkable.

the supreme court is not here to make the public feel comfortable. the supreme court is here to read the constitution. that's their job. you have a number of justices on the supreme court who describe themselves as text yulist. it begs the question of when section 3 of amendment 14 would ever be used and ever qualify. what's the point of having it in there? >> according to those justices today, the answer would be when congress said it should be used by a majority vote. then they can remove that disability by a two-thirds vote. i think that's the likely outcome for the reasons that you and mark were just discussing. if they hinge this result on, it's too soon that colorado by removing him from the ballot would essentially be modifying constitutional qualifications, which a supreme court case says you can't do. then as you said,s they could just come back around and be here several months from now. so i think it's more likely that

we'll see them say, no, states are the not entitled to implement the 14th amendment, at least vs. federal candidates. you're right to say there are a whole bunch of decisions embodied there where they have to look the other way. in particular, it says congress in this amendment or this clause once. it says congress can remove the disability. >> they are the remedy, not the enforcer. >> so that's a very way of looking at this. on the other hand, i do think a number of them are going to side with justice kavanaugh, who seemed to suggest the history of the 14th amendment's enactment and griffin's case which they referred to several is times a day. >> that wasn't precedent. >> it's not precedent, but it has been sort of historically what everybody looks to. >> the judge, when he became

supreme court justices, went back on himself. >> and that's why i think the gloss on today is you can win the battal and lose the war. today for two reasons was a very good day for donald trump. but there were overhangs about the immunity decision. two justices who made comments that led me to believe that they are notes for trump on the immunity question and we'll see. >> today made me want to go to law school to be a constitutional lawyer. lisa rubin, mark, thank you very much. president biden is about to speak in leesburg, virginia. i'm going to hand it over to "deadline: white house" to take over that. don't go anywhere. hey, everyone. it's 4:00 here in new york. we have a lot of news to get to today. including the release of a report by special counsel robert herself and the