President Joe Biden just stepped in it.
His damning audio confession that "I just found all the classified stuff downstairs" was revealed to the world in the recently released ghostwriter tapes.
The startling admission dates to a February 2017 audio recording, which is a month after he left the White House as Vice President.
No wonder the Biden legal team was fighting so hard to keep the tapes from going public.
Special Counsel Robert Hur declined to charge the President for illegally retaining and storing classified materials.
He infamously concluded:
We have also considered that, 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. 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.
The verbiage about finding classified material is found in the Special Counsel report, but Hur explains away the “matter-of-fact” statement:
Several defenses are likely to create reasonable doubt as to such charges. For example, Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not retain them willfully. When Mr. Biden told his ghostwriter about finding ''all the classified stuff downstairs," his tone was matter-of-fact. For a person who had viewed classified documents nearly every day for eight years as vice president, including regularly in his home, finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event.
This is not sober legal analysis, to say the least. It shows that Biden was aware that he had classified documents in his possession, a pivotal admission toward building a criminal case.
There is no blanket exception in federal law that excuses the unlawful retention or disclosure of classified information simply because a subject later claims to have forgotten about it.
READ MORE: Biden Ghostwriter Tapes, Transcripts Are Out - and They're Already Raising Big Questions
It is not up to Hur to decide if jurors would find Biden “well-meaning,” but rather if jurors are able to render a "guilty" verdict based on the law. Hur, however, arguably went beyond assessing the sufficiency of the evidence by predicting how a jury would view Biden personally rather than focusing solely on whether the evidence could establish guilt beyond a reasonable doubt.
The Special Counsel's decision was particularly egregious given the relentless crusade against Donald Trump being waged by his counterpart, Jack Smith. Unlike the Biden case, Trump had to fight criminal charges in court. Those charges were ultimately dismissed by Judge Aileen Cannon due to Smith's improper appointment as Special Counsel.
There may, however, be some path toward accountability for the former president. The newly released audiotapes could play a role in helping to rectify the issue of Joe Biden unlawfully disclosing classified material to his ghostwriter in the drafting of his memoir.
After a lengthy legal battle, the Oversight Project on Monday released more than 70 hours of recordings from Biden’s 2016 and 2017 interviews with ghostwriter Marc Zwonitzer, conducted while Biden was writing "Promise Me, Dad."
The recordings were obtained following a Freedom of Information Act lawsuit after Biden abandoned his effort to keep the tapes sealed.
Former Assistant Attorney General Jeffrey Clark, now vice president of litigation for the Oversight Project, said his initial review indicates Biden disclosed classified information directly to Zwonitzer during the interviews.
“Our team is reviewing the Biden tapes now. We will be out with various bombshells,” Clark wrote Monday.
“But I want to make this point right now. The tapes make clear that Biden disclosed massive amounts of classified information to his ghost writer Marc Zwonitzer.”
Clark then pointed to a federal statute he believes should have received far more attention during Hur’s investigation.
He cited 18 U.S.C. § 798(d), which provides that anyone convicted under that section must forfeit both the proceeds obtained through the violation and any property used to facilitate it.
Clark argued that, if prosecutors believed Biden violated the law by disclosing classified information to his ghostwriter, they should have also considered pursuing forfeiture.
“Last, ask yourself, why didn’t Special Counsel Robert Hur seek a prosecution and then (A) the forfeiture [of] the $8 million book advance that Joe Biden got for Promise Me, Dad; and (B) his Delaware house and any other Biden property where he kept classified information?”
The forfeiture provision states:
“(1) Any person convicted of a violation of this section shall forfeit to the United States...
(A) any property constituting, or derived from, any proceeds the person obtained... as the result of such violation; and
(B) any of the person’s property used... to commit, or facilitate the commission of, such violation.”
Clark’s argument rests on the premise that Biden unlawfully disclosed classified information during the ghostwriting sessions and that any resulting book proceeds — as well as property allegedly used in the offense — could therefore become subject to forfeiture upon conviction.
Hur, however, never sought charges, meaning the forfeiture provisions were never at issue in court. The newly released tapes could change all of that.
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