Special counsel calls out Biden's 'faulty memory'; his attorneys slam that as false, 'inflammatory'

The president's mental recall is mentioned repeatedly in a new report.

February 8, 2024, 8:58 PM

The account of President Joe Biden's memory is a striking and disputed part of a 345-page report issued Thursday by the federal prosecutor who spent a year investigating his handling of classified information while out of office.

Special counsel Robert Hur wrote that his assessment of Biden's mental acuity and power of recall -- described as sparse, apparently "hazy" and, in one interaction, so bad that the president could not recall "even within several years" when his oldest son had died -- informed the decision not to recommend charges.

Within hours of Hur's report being made public, Biden's reported memory problems were attracting notice in the political arena and the media -- including from Biden's critics.

Hur's language also drew a fierce rebuke from Biden's attorneys, who called it wrong and "inflammatory," and Biden, reacting to the report later on Thursday, raised the specter of Hur's potential partisanship when he called Hur a "Republican counsel," referring to the prosecutor's background.

What the report says about Biden's memory

Broadly speaking, Hur concluded that "no criminal charges are warranted" after his investigation, which nonetheless "uncovered evidence that President Biden willfully retained and disclosed classified information after his vice presidency when he was a private citizen."

That's because, Hur wrote, the "evidence does not establish Mr. Biden's guilt beyond a reasonable doubt."

The White House had emphasized from the beginning that it would cooperate with investigators. Biden himself repeatedly denied any personal wrongdoing and has said he was "surprised" to learn of the existence of the documents, which he returned after they were found.

In his report, Hur wrote that he had considered the perception problem a prosecution might face with jurors -- because of what Hur called Biden's memory issues.

"At trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory," Hur wrote.

"Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him-by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness," Hur continued.

President Joe Biden delivers remarks urging Congress to pass the Emergency National Security Supplemental Appropriations Act in the State Dining Room at the White House in Washington, U.S., February 6, 2024.
Evelyn Hockstein/Reuters

Among what Biden's attorneys noted were "at least nine" examples, Hur called Biden's memory significantly limited in his interviews with a ghostwriter for a memoir as well as Hur's own private sit-down with the president last year.

Hur wrote in his report that Biden's "recorded conversations with [his ghostwriter] from 2017" -- which were later reviewed by investigators -- were "often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries."

When Biden was interviewed by Hur's team, in October, his "memory was worse," Hur wrote.

"He [Biden] 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?'), and forgetting on the second day of the interview when his term began ('in 2009, am I still Vice President?')," Hur wrote.

The special counsel continued: "He did not remember, even within several years, when his son Beau died," which was in 2015. "And his memory appeared hazy when describing the Afghanistan debate that was once so important to him."

For example, Hur wrote, Biden "mistakenly said he 'had a real difference' of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Eiden cited approvingly" in a memo to then-President Barack Obama.

Hur also wrote that Biden had "diminished faculties and faulty memory" both when talking to his ghostwriter and in his interviews with the special counsel's team -- the kind of language to which Biden's lawyers and Biden himself later sharply objected.

In hastily scheduled remarks from the White House on Thursday night, Biden castigated Hur for the reference to his son.

"I know there's some attention paid to some language in the report about my recollection of events. There's even reference that I don't remember when my son died. How in the hell dare he raise that? Frankly, when I was asked the question, I thought to myself, it wasn't any of their damn business. ... I don't need anyone to remind me when he passed away or that he passed away," Biden said.

In those same comments, however, Biden also mistakenly referred to the president of Egypt as the president of Mexico.

Biden critics seize on memory details

Republicans were quick to point to Hur's focus on Biden's memory in attacking the president, about whom -- polls have shown -- the public has expressed broad doubts regarding his age and acuity, while Trump does not have the same problems.

For example, an ABC News poll from April-May 2023 found that 68% of Americans said he was too old for another term as president while more than half of Americans said Trump had the mental sharpness to serve effectively in the White House, compared to 32% who said the same of Biden.

That was down steeply from 51% when Biden was running for president in the 2020 campaign.

He has repeatedly acknowledged the public's concerns about his age but said his record proves his fitness for office. He is 81; Trump is 77.

"I feel good. I feel excited about the prospects, and I think we're on the verge of really turning the corner in a way we haven't in a long time," Biden told ABC News Chief White House Correspondent Mary Bruce in April 2023.

After Hur's report on Thursday, Republicans said the special counsel had shown Biden was unfit.

"If you're too senile to stand trial, then you're too senile to be president. Joe Biden is unfit to lead this nation," a spokesperson for former President Donald Trump's allied super PAC said in a statement.

The House Judiciary Committee's Republican members echoed that in their own attack, writing on X: "They didn't want to bring charges against President Biden for the classified documents case because he's too old and has a bad memory. They're admitting what we all see every day."

U.S. Attorney Robert Hur arrives at U.S. District Court in Baltimore on Nov. 21, 2019.
Steve Ruark/AP

Biden's attorneys react: 'Highly prejudicial'

Days before Hur's report became public, Biden's attorneys Bob Bauer and Richard Sauber wrote to him -- both because they were "pleased to see" that no charges would be recommended against the president but also to push back on what they called an inappropriate, selective and perhaps even biased focus on Biden's memory.

"The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events," Bauer and Sauber wrote to Hur in a letter on Monday, included in Hur's report.

"If the evidence does not establish guilt, then discussing the jury impact of President Biden's hypothetical testimony at a trial that will never occur is entirely superfluous," his attorneys continued.

Far from being seeming "hazy," Bauer and Sauber insisted, Biden -- in his interviews for Hur's investigation -- "proceeded to provide often detailed recollections across a wide range of questions, from staff management of paper flow in the West Wing to the events surrounding the creation of the 2009 memorandum on the Afghanistan surge."

"He engaged at length on theories you offered about the way materials were packed and moved during the transition out of the vice presidency and between residences. He pointed to flaws in the assumptions behind specific lines of questioning," his attorneys wrote.

But Hur was improper in singling out Biden's lapses, Bauer and Sauber argued.

"The President's inability to recall dates or details of events that happened years ago is neither surprising nor unusual, especially given that many questions asked him to recall the particulars of staff work to pack, ship, and store materials and furniture in the course of moves between residences," they wrote. "The same predictable memory loss occurred with other witnesses in this investigation. Yet unlike your treatment of President Biden, your report accepts other witnesses' memory loss as completely understandable given the passage of time."

"Not only do you treat the President differently from other witnesses when discussing his limited recall of certain years-ago events. but you also do so on occasions in prejudicial and inflammatory terms," the attorneys wrote.

What's more, "It is also in contrast to your own description of the President's responses on other subjects as 'clear forceful testimony' that would be 'compelling' to a jury," they wrote.

Bauer and Sauber suggested that Hur's focus on Biden's mental sharpness, or lack thereof, was not just unnecessary to his work -- it shouldn't be included "by a federal prosecutor in this context."

"We request that you revisit your descriptions of President Biden's memory and revise them so that they are stated in a manner that is within the bounds of your expertise and remit," they wrote.

Biden, when he spoke Thursday afternoon in the wake of the report's release, reiterated a statement issued on his behalf by the White House and noted that Hur was appointed as a U.S. attorney in the Trump administration.

ABC News' Tal Axelrod, Lucien Bruggeman, Gary Langer and Alexander Mallin contributed to this report.