Fact-checking Sunday show spin on the special counsel’s findings on Joe Biden’s classified documents

The special counsel report on President Joe Biden’s handling of classified documents was a major discussion topic on the Sunday morning political talk shows. 

The president’s critics played up Special Counsel Robert Hur’s description of Biden’s allegedly poor memory; defenders countered that such details were inaccurate, out of bounds for such a report, or both.

The discussion yielded several examples of incomplete or inaccurate descriptions of what Hur wrote in the report. 

Here’s a rundown.

Sarah Isgur, a former Justice Department official under former President Donald Trump appearing on ABC’s "This Week," overstepped on the report’s findings about reasonable doubt.

"They found evidence that (Biden) willfully retained national security information. And even probably beyond a reasonable doubt," Isgur said. "But the justice manual says that that's not enough even if you can prove it beyond a reasonable doubt. You have to believe, as the prosecutor, that you can get a conviction from a jury." 

In the report’s executive summary, Hur wrote that "we conclude that the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt." 

The report repeats the concern about not achieving proof beyond reasonable doubt roughly two dozen more times throughout the 388 pages of text.

Sen. Tom Cotton, R-Ark., appearing on "Fox News Sunday," exaggerated the similarities between the Biden documents case and the one being pursued by Jack Smith, a different special counsel, against Trump.

Willfully disclosing classified material is "exactly what Donald Trump’s been charged with," Cotton said. "The special counsel had to explain why he wasn’t going to charge President Biden with a crime, since President Trump is facing the exact same crime and the explanation is, President Biden’s memory is failing."

There is overlap between the willful retention charge that Hur considered against Biden and the document case charges against Trump. However, Cotton ignored other charges that were made against Trump and not against Biden.

When Trump was indicted in June 2023 on about three dozen counts, the charges included conspiracy to obstruct justice and making false statements. The indictment accused Trump of 

• "suggesting that his attorney falsely represent to the FBI and grand jury that Trump did not have the documents called for by the grand jury subpoena."

• directing an employee "to move boxes of documents to conceal them from Trump’s attorney, the FBI and the grand jury." 

• "suggesting that his attorney hide or destroy documents." 

• causing the submission of a certification to the FBI and grand jury "falsely representing" that all documents had been produced.

In his report, Hur stated that Biden had consistently cooperated with the special counsel’s investigation. Hur specifically noted that this was a major point of contrast with how Biden and Trump handled classified documents after they left office.

Several hosts and guests on the shows omitted a key word — "evidence" — when summarizing what the report said.

Although the report sometimes reads as if the special counsel mentally concluded that Biden was guilty of willful retention of classified documents, Hur’s phrasing is more circumspect.

Here’s how several Sunday show guests went beyond what the report said: 

• The report "codified the fact that … Biden committed a felony and willful retention of documents." — "This Week" guest Reince Priebus, President Donald Trump’s first chief of staff.

• The special counsel wrote that Biden "‘willfully and knowingly retained classified documents.’" — Chris Christie, former New Jersey governor and former Republican presidential candidate, on NBC’s "Meet the Press."

• "The report makes it clear President Biden intentionally took classified material and he willfully disclosed it to his own ghostwriter. That’s clear." — Cotton on "Fox News Sunday." (Cotton’s reference to Biden’s ghostwriter concerns his 2017 memoir, "Promise Me, Dad." The special counsel found evidence that Biden shared classified information with his ghostwriter as the book was being written, though no classified material appeared in the book.)

Also, hosts Jonathan Karl on ABC’s "This Week" and Kristen Welker on NBC’s "Meet the Press" didn’t use the word "evidence" when referring to the report on their shows, and a graphic behind Welker’s shoulder also omitted the word.

In each case, this framing goes beyond what the report said.

To be fair, our initial article on the special counsel’s report also did not appreciate the distinction between including or omitting the word "evidence." We decided to update our earlier story given feedback from experts for this one.

At the beginning of the report, the special counsel said the investigation "uncovered evidence that President Biden willfully retained and disclosed classified materials." The phrase "uncovered evidence that" offers a limit on what the special counsel concluded.

The special counsel said Biden would likely be able to muster counterevidence against a charge of "willful retention" if the case were to go to trial.

Several legal experts told PolitiFact that omitting the "uncovered evidence that" phrasing is not trivial.

"Saying that there is evidence of a crime is not the same as saying Biden is guilty of a crime," said Joan Meyer, who has worked as a prosecutor at the federal and local level.

Ric Simmons, an Ohio State University law professor, said the special counsel was consistent. The report "always says that there is evidence that Biden committed these crimes, not that he is guilty of these crimes, and this is consistent with the best practices of prosecutors," he said.

In essence, Simmons said, "Hur says that he does not believe he can prove Biden's guilt beyond a reasonable doubt, so it would be even worse for him to claim that Biden is guilty."

Biden’s legal team referred to a handwritten memo Biden wrote to then-President Barack Obama about Afghanistan around Thanksgiving 2009. It was among the materials FBI agents recovered from Biden's Delaware garage and home office in December 2022 and January 2023. 

"Even the special counsel acknowledges (that this) was one that he would not have thought would include classified information," Bob Bauer, Biden’s personal attorney, said on CBS "Face the Nation."

The report said: "The memo concerned deliberations from more than seven years earlier about the Afghanistan troop surge, and in the intervening years those deliberations had been widely discussed in public, so Mr. Biden could have reasonably expected that the memo's contents became less sensitive over time." 

"Less sensitive" is not the same as having zero classified information. However, the report acknowledged that if the charges came to trial, "We expect the defense would strongly challenge whether the documents still contain sensitive national defense information."