Biden classified docs report brings no criminal charges, but enough to invoke 25th Amendment: critics

While the White House may be celebrating Special Counsel Robert Hur's decision not to charge President Biden for what the investigator still considered willful taking of classified material, they may not be as enthused about Hur's repeated suggestions about the president's level of cognitive decline, a top former federal prosecutor said.

"My first impression was that this is supposed to be about whether there's enough evidence to indict. And as you read the report, I can't help but say it sure looks like there's enough here to invoke the 25th Amendment," Andrew McCarthy, a former federal prosecutor and a Fox News contributor, said Thursday on "The Story."

"I know that's not what [Hur] is looking at… but [Biden's] fitness for office is a major issue here."

The 25th Amendment codified presidential succession and offers certain officials levers to declare the president unfit or infirm and remove him from office. McCarthy believed Hur's findings may not present criminal liability, but could endanger Biden's re-election prospects:

Hur, who previously succeeded Rod Rosenstein as U.S. Attorney for Maryland, wrote that Biden's memory has become "worse" and claimed he failed to remember the years during which he was vice president:

"[F]orgetting 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."

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This image from Special Council Robert Hur’s investigation released by the Department of Justice on Thursday, February 8, 2024 shows Joe Biden’s garage storage closet in his Delaware home on December 21, 2022. (U.S. Department of Justice)

According to Hur's report, Biden also claimed to have been in real disagreement with Gen. Karl Eikenberry about Afghanistan, while in reality, the general was an "ally whom Biden cited approvingly" in a prior memo to then-President Barack Obama.

"He did not remember, even within several years, when his son Beau died," Hur went on.

Instead, Hur expressed reservations that a jury would not be inclined to indict a "sympathetic, well-meaning, elderly man with a poor memory" on a "serious felony" requiring "willfulness."

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While the report could bring new scrutiny to Biden on 25th Amendment grounds, leading Democrats previously made the amendment a relative theme in their opposition during former President Trump's administration:

In 2017, Rep. Jamie Raskin, D-Md., also drafted the Oversight Commission on Presidential Capacity Act, claiming Trump's bombastic behavior "triggered alarm across the political spectrum" and "within the medical and mental health communities." About 50 House Democrats joined Raskin in sponsoring the ultimately failed legislation.

In 2021, Raskin along with Rep. Ted Lieu, D-Calif. and then-Rep. David Cicilline, D-R.I. drafted a resolution pressing then-Vice President Mike Pence to begin 25th Amendment proceedings against President Donald Trump. 

The move was quickly quashed by Rep. Alex Mooney, R-W.V., and was another of several instances wherein Democrats cited the amendment in trying to dislodge Trump from office.

As for Trump's own case of allegedly mishandling classified information, McCarthy noted the legal standard for Espionage Act culpability is not "willfulness" – as Biden's demeanor was described – but "gross negligence."

"I really don't understand how the ‘fumbling, bumbling’ aspect of all this helps him, because if the jury even merely believed that he was grossly negligent, that would be enough to convict," he said.

Hur's report further fuels questions about Biden's cognitive abilities following a week of gaffes where he confused the names of European leaders with long dead top officials. Recently, Biden claimed to have had generally recent discussions with two long-deceased world leaders, former German Chancellor Helmut Kohl – who died in 2017 – and former French President Francois Mitterrand.

Special Counsel Jack Smith, left, and Special Counsel Robert Hur. (Getty Images)

When asked for comment by Fox News correspondent Peter Doocy, Biden spokeswoman Karine Jean-Pierre admonished the reporter, saying she wouldn't descend into "that rabbit hole."

While Hur's report could bring renewed scrutiny to Biden's cognitive abilities and reelection prospects, McCarthy told "The Story" it was another instance of Thursday being an extraordinarily good day for Trump.

McCarthy said Trump's morning was highlighted by Supreme Court arguments in the Colorado ballot removal case where the former prosecutor suggested a potential 8-1 ruling in the Republican's favor.

He praised Trump's response to the arguments from his Palm Beach club, and his longstanding campaign message that America has become home to a two-tiered justice system weighted in favor of the left.

Hur's report helped Trump's case in that regard, McCarthy argued.

"He's down in Florida looking at, I think it's three dozen, maybe 40 charges. And the reason that indictment is so larded up is because they've charged him with technical violations of the Espionage Act, which they have now decided not to bring against President Biden: It's amazing," he added.

Charles Creitz is a reporter for Fox News Digital. 

He joined Fox News in 2013 as a writer and production assistant. 

Charles covers media, politics and culture for Fox News Digital.

Charles is a Pennsylvania native and graduated from Temple University with a B.A. in Broadcast Journalism. Story tips can be sent to This email address is being protected from spambots. You need JavaScript enabled to view it..