Notebooks containing classified information. FBI agents recovered from
unlocked drawers in the office and basement den of Mr. Biden's Delaware home a set
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of notebooks he used as vice president. Evidence shows that he knew the notebooks
contained classified information. Mr. Biden wrote down obviously sensitive
information discussed during intelligence briefings with President Obama and
meetings in the White House Situation Room about matters of national security and
military and foreign policy. And while reading his notebook entries aloud during
meetings with his ghostwriter, Mr. Biden sometimes skipped over presumptively
classified material and warned his ghostwriter the entries might be classified, but at
least three times Mr. Biden read from classified entries aloud to his ghostwriter
nearly verbatim.
Some evidence also suggests Mr. Biden knew he could not keep classified
handwritten notes at home after leaving office. Mr. Biden, who had decades of
experience with classified information, was deeply familiar with the measures taken
to safeguard classified information and the need for those measures to prevent harm
to national security. Asked about reports that former President Trump had kept
classified documents at his own home, Mr. Biden wondered how "anyone could be that
irresponsible" and voiced concern about "[w]hat data was in there that may
compromise sources and methods." \Vhile vice president, he kept his notebooks in a
White House safe for a time, in contrast with his decision after leaving office to keep
them at home in unlocked drawers.
When Mr. Biden left office, he also knew his staff decided to store notecards
containing his classified notes in a Secure Compartmented Information Facility
(SCIF) at the National Archives, and he knew his notebooks contained the same type
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of classified information. As he told his ghostwriter during a recorded interview, the
same staff who arranged to secure his classified notecards "didn't even know" he had
retained possession of his classified notebooks. Twice in 2017, Mr. Biden visited the
National Archives SCIF to review his classified notecards while writing his book. Yet
he kept his notebooks, which also contained classified information, in unlocked
drawers at home. He had strong motivations to do so and to ignore the rules for
properly handling the classified information in his notebooks. He consulted the
notebooks liberally during hours of discussions with his ghostwriter and viewed them
as highly private and valued possessions with which he was unwilling to part.
\Ve do not, however, believe this evidence would meet the government's burden
at trial~particularly the requirement to prove that Mr. Biden intended to do
something the law forbids. Consistent with statements Mr. Biden made during our
interview of him and arguments made by the White House Counsel and Mr. Biden's
personal counsel, we expect Mr. Biden's defense at trial would be that he thought his
notebooks were his personal property and he was allowed to take them home, even if
they contained classified information. During our interview of him, Mr. Biden was
emphatic, declaring that his notebooks are "my property" and that "every president
before me has done the exact same thing," that is, kept handwritten classified
materials after leaving office. Ho also cited the diaries that President Reagan kept in
his private home after leaving office, noting that they included classified information.
Contemporaneous evidence suggests that when Mr. Biden left office in 2017,
he believed he was allowed to keep the notebooks in his home. In a recorded
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conversation with his ghostwriter in April 2017, Mr. Biden explained that, despite
his staffs views to the contrary, he did not think he was required to turn in his
notecards to the National Archives-where they were stored in a SCIF-and he had
not wanted to do so. At trial, he would argue plausibly that he thought the same about
his notebooks.
If this is what Mr. Biden thought, we believe he was mistaken about what the
law permits, but this view finds some support in historical practice. The clearest
example is President Reagan, who left the White House in 1989 with eight years'
worth of handwritten diaries, which he appears to have kept at his California home
even though they contained Top Secret information. During criminal litigation
involving a former Reagan administration official in 1989 and 1990, the Department
ofJustice stated in public court filings that the "currently classified" diaries were Mr.
Reagan's "personal records." Yet we know of no steps the Department or other
agencies took to investigate Mr. Reagan for mishandling classified information or to
retrieve or secure his diaries. Most jurors would likely find evidence of this precedent
and Mr. Biden's claimed reliance on it, which we expect would be admitted at trial,
to be compelling evidence that Mr. Biden did not act willfully.
As with the marked classified documents, because the evidence is not sufficient
to convict Mr. Biden for willfully retaining the notebooks, we decline prosecution.
We also considered whether Mr. Biden willfully disclosed national defense
information to his ghostwriter by reading aloud certain classified notebook passages
to the ghostwriter nearly verbatim on at least three occasions. Mr. Biden should have
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known that by reading his unfiltered notes about classified meetings in the Situation
Room, he risked sharing classified information with his ghostwriter. But the evidence
does not show that when Mr. Biden shared the specific passages with his ghostwriter,
Mr. Biden knew the passages were classified and intended to share classified
information. Mr. Biden's lapses in attention and vigilance demonstrate why former
officials should not keep classified materials unsecured at home and read them aloud
to others, but jurors could well conclude that Mr. Biden's actions were unintentional.
We therefore decline to charge Mr. Biden for disclosure of these passages to his
ghostwriter.
