Lawmakers on both sides of the aisle have been accused of mischaracterizing special counsel Robert Hur's report on President Biden's investigation into classified records. National security law experts argue that politicians disregarded crucial nuances in Hur's decision not to recommend any charges against Biden, leading to incorrect conclusions about his actions.

Mark Zaid, a national security law expert, criticized both Democrats and Republicans for distorting the findings of the report to suit their political and ideological agendas. He pointed out that Democrats failed to acknowledge the potentially harmful assessments of Biden's actions, while Republicans failed to draw a clear distinction between Biden's case and that of former President Trump.

During a five-hour hearing, Republican lawmakers focused on specific language in the law that targets those who "willfully retain" national defense information. They argued that this phrase acted as a "get out of jail free" card for Biden, with Rep. Matt Gaetz dubbing it the "senile cooperator theory." Meanwhile, some Democrats referred to the report as a "total exoneration" for Biden, a characterization that Hur strongly disputed.

The confusion among lawmakers arises from their limited understanding of the Espionage Act and its provisions regarding the willful retention of records. Kel McClanahan, the executive director of National Security Counselors, explained that the inclusion of "willfulness" in the law is crucial to demonstrate intent. He emphasized that unintentional mishandling of classified information, such as accidentally taking documents home or misplacing them, is not uncommon and is typically not prosecuted.

In Biden's case, it was more complicated than a mere lapse in memory regarding the possession of classified documents. Hur noted in his report that it was unclear how the documents ended up in Biden's office at the Penn Biden Center and his home. Their storage in the garage among "household detritus" indicated that the president was likely unaware of their presence. Furthermore, as vice president, Biden was allowed to take classified records home, which may have contributed to their improper transfer.

In a similar vein, former President Trump is not charged with retaining any documents taken during the transition but returned after a subpoena. However, he does face charges for keeping other documents and failing to comply with a demand to return them. Comparisons to former President Reagan, who retained diaries containing references to classified information without investigation, further complicate the issue of retention.

While Biden's acknowledgment to his ghostwriter about finding classified material downstairs raises potential vulnerability, experts argue that several other factors work in his favor. Aside from the notebook, there is no evidence to suggest that Biden knew or planned to take the records to various locations. Additionally, Biden's prompt cooperation, timely return of the records, and lack of memory surrounding the events weaken the case for intentionality or willfulness.

The misinterpretation of Hur's report highlights the need for a comprehensive understanding of the law and its application in such cases. National security law experts stress that proving intent is a fundamental requirement, and without clear knowledge of the documents' presence, it becomes challenging to establish willful retention.

As the House Judiciary Committee, with its experienced lawyers and experts, continues to examine the details of the investigation, it is crucial for lawmakers to approach the matter objectively and with a deeper understanding of the legal complexities involved.