Hur's opening statement said that Biden 1) is on tape saying "I've got all the classified stuff in the basement" (or something to that effect) on a phone call to his ghost writer when Biden was just a private citizen, and 2) boxes of classified "stuff" were actually found in that "basement". But 3) Biden said during his 5 hour interview with Hur that he had no recollection of that phone call.

So, doesn't 1 establish mens rea (guilty mind) and 2 establish actus reus (guilty act)?

The Albaby-signal! Quick, to the law cave!

The key is to remember that there is a huge difference in the criminal statutes between ordinary classified information and "national defense information," which is a subset of classified information that relates to specific substantive topics. Because the Vice-President was allowed to have classified information outside of the office, the classified information would have been legal to be there during his term of office. But the criminal statute then would make it illegal for him to keep the national defense information part of that at a time when he was asked to return it. IOW, criminal liability only inheres if he knowingly retains national defense information during the time when he was a private citizen.

There's no evidence to prove he did. There was a tranche of classified documents that related to national defense that was found in Biden's Delaware home in 2022, which Hur labels the "Afghanistan documents." But there's insufficient evidence to prove either that the Afghanistan documents were in Biden's Virginia home in 2017, or that Biden knew about those specific documents when he had left office.

There are at least three defenses likely to create reasonable doubt as to such charges. First, Mr. Biden could have found the classified Afghanistan documents at the Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not willfully retain them. Second, Mr. Biden might not have retained the classified Afghanistan documents in the Virginia home at all. They could have been stored, without his knowledge, at his Delaware home since the time he was vice president. This would rebut charges that he willfully retained the documents in Virginia. Finally, Mr. Biden could have found only some of the classified Afghanistan documents in the Virginia home in 2017-the ones in the manila "Afganastan" folder found in the garage box-and it is unclear whether this folder contained national defense information. This too would rebut charges that he willfully retained national defense information, as required by the criminal statutes.

cases.justia.com - C a no ksjm