about afghanistan and mr. biden's handwritten entries about issues of national security. john, foreign policy implicating sensitive sources. >> how is this different than trump? how is this different? the only difference is trump as president could stake stuff with him. all right? as vice president, you can't take stuff with you. as a u.s. senator you can't take stuff with you. i have said this for months and months. >> john: larry, sorry. we'll talk to you soon. raise is in for martha today. here he comes. we'll see you tomorrow. >> john and sandra and larry, good afternoon. i'm trace gallagher in for martha maccallum. david spunt, by the way, continuing to come through the report, 345 pages from the special counsel on president biden's handling classified documents. we'll get back to david, give him a chance to get up to speed

on that. he will bring us the breaking news as it continues. meantime, breaking today, it is now in the supreme court's hands to decide whether or not former president trump is eligible to run for president. the nine justices hearing arguments today around this question. is colorado correct in barring trump from its 2024 ballot for "engaging in insurrection", which is something the former president has never been criminally charged with. all of the states that you see on the screen also weighing challenges to trump's eligibility.so the decision really has massive implications for millions of voters across the country. here's reaction from the former president. watch. >> i listened today. i thought our arguments were very strong.

an argument is you're leading in every race and every state. and biden, you're leading in the country, by a lot. and can you take the person that is leading everywhere and say hey, we're not going to let you run. you know, i think that's tough to do. but i'm leaving it up to the supreme court. >> trace: meantime, our panelists standing by, andy mccarthy, sol wisenberg and marc thiessen. first to shannon bream outside the supreme court. good afternoon. >> good to see you, trace. listen, the import of this, not lost on the justices, you know normally a case takes years to get here, months if it's really fast-tracked. this took weeks. there's so many other states involved with this issue. these justices want to get this issue resolved. there was a lot of wonky policy statutory driven argument today. but eventually the chief justice got down to summing up what will happen if this court approves what colorado did.

here's what he said. >> a goodly number of states will say whoever the democratic candidate is, you're off the ballot and others for the republican candidate, you're off the ballot. it will come down to a handful of states to decide the presidential election. it's a doubting consequence. >> he's not alone thinking there's problems with moving forward if approving with colorado's decision to ban the former president from their ballot. instead, it sounds like they're going to make a decision quickly in this case. some of us think it could be 8-1 or 9-0. >> trace: thanks, shannon. live out site the supreme court. now to our breaking story, the release of robert hur's report on president biden's handling of classified documents. no charges are being recommended. let's get to david spunt live at the justice department with the breaking force on this. david? >> trace, you can call it a busy day in washington d.c. we got this report.

345 pages. while there are no charges, it's damning for not only president biden, but his administration. i want to read some very important passages. first of all, let's put up the fact that we have photographs that show biden's garage, the president's garage in wilmington, delaware with boxes tattered, ripped, torn boxes containing classified documents. he told peter doocy that he kept them in his garage. it's not like they were out on the street. something along those lines. we know a lot of these documents had to do with afghanistan and his opposition to his boss, then president obama's decision, to send a troop surge to afghanistan. biden was always against that. so he kept a lot of classified documents related to afghanistan. i want to read this. it says "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 an observations of him, he's 1 from 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 in to his 80s of a serious felony that requires a mental state of willfulness. this is directly from page 6 of the report. as i noted with john and sandra about eight minutes or so ago, they're assuming that president biden either wouldn't run for another term or wouldn't win in november because this would not take another four years if he wins to go to trial and get a conviction. so we see picture after picture of documents that are in his garage. some of the other key passages, there was no evidence that mr. biden shared classified information with any foreign person. in january 2017, after the end of his vice presidency, mr. biden found classified documents at his virginia home and returned them. so it's a bit of a mixed bag.

he said he willfully took classified documents but returned them once he thought it was appropriate to return them. and over and over as we see there in those pictures, that's that box i'm talking about with the afghanistan documents in his garage in wilmington, delaware. this all comes at the same time the former president is facing trial in florida for taking classified documents, but legal analysts will say that may be different because donald trump was issued a subpoena to turn them over, biden was not. after all, this is not good news for the white house here when they're trying to get away from this and hear we go with picture after picture after picture. 345 pages total for this report, trace. >> trace: yeah. and the text is not very complimentary. david spunt, we'll be back as the news break.

back to our panel. andy mccarthy, sol wisenberg and marc thiessen, all are fox news contributors. andy, to you first. i'm reading off page 6 first. we brought you on to talk about the supreme court. we're going to kind of chew both, if we can here. page 6 as david was giving us this thing. it says quoting here, 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. i mean, it seems to be like you have taken a slap to the president. it's clearly no charges being filed here, but it's rather embarrassing, andy. is there any legal consequences to this? >> well, the legal consequence is that he won't be charged. you know, that description is perfectly fine if you want to have a sympathetic defendant. the reaction of the country will be that's not exactly what we

want in our president. you know, you did as you mentioned, trace. you did bring me on to talk about the other story. i think it all ties together. i can't imagine president trump having had a better day in the last few years than he's had today. he had a supreme court hearing this morning where i think he's going to win 9-0 because the position against him can't be sustained. then he came out after that was over. when was the last time you saw somebody being addressed by the media that stood there 15 or 20 minutes and answered every question. you may not have liked what he said but he was sharp, he answered the questions. there wasn't any, you know, preveting of what the questions were. and he stood there for 15 minutes and did it. now you have a situation where his key theme in the election is that there's two tiers of justice. he's down in florida looking at

i think three dozen, maybe 40 charges. the reason that indictment is so larded is because they charged him with technical violations of the espionage act that they decided not to bring against president biden. it's amazing. >> trace: i'd like your take on that, sol. what is your comparison between the two cases and do you think when you kind of look at the new documents along with the supreme court decision, do you find any correlations in to what president trump went through today because as andy said, it was a good day for him. >> it was a good day for him. i agree with andy. to his last point, the only real -- there's obviously factual differences. the big legal difference between the two cases is that in the case of former president trump, the allegation is that he had a

grand jury superior and he engaged in obstructive behavior and dishonest behavior in terms of responding to that subpoena. you don't have that in the case of president biden. that is a hump that former president trump will have to get over if he ever goes to trial. but he's got a sympathetic potentially jury panel with some pro maga people that are likely to be on it. and this will have an effect. this will have an effect that president biden doesn't get charged and that former president trump did. >> trace: yeah. marc thiessen, to you politically. you look at, this andy was saying here, you have now this report coming out from the special counsel saying that listen, joe biden is just an old man with a poor memory. it comes on the same week he decided not to do a super bowl interview, marc. you had trump answers all of these questions, every question thrown at him today. he's answered. we haven't had the president

answer questions like that in quite some time, if ever. so you can kind of see where this whole narrative is going for the remainder of if day. >> oh, he tried yesterday to answer some questions. ended up like -- it wasn't a word salad. it was a long um. there wasn't even a convoluted words. larry cuddly was yelling off the side of the stage in the last show, how is this different than trump? i'll tell you one way it's different than trump. trump was president when he took these documents. he had full declassified case authority. authority over those documents. these are documents that joe biden took when he was a united states senator where he's not even supposed to have these outside the senate skiff. they were found in the penn biden center. they were things when he took when he was vice president. the vice president doesn't have declassification authority. i don't that trump can declassified them with his mind. but the kim jung letter.

it was recorded in a book. he gave it to a reporter as president of the united states. he can claim that he declassified that. it's more complicated for trump legally, but this is -- these are things that joe biden had no right to have under any circumstances. trump at least can make an argument that he had the right to possess these things. he doesn't. >> trace: i want to go back to the supreme court argument. know you can say it can be 9-1, maybe 8-1. justice sotomayor said she might have been believing the argument for a bit. i want to play this sound bite. this is justin kavanaugh questioning the attorney for colorado voters on defining the definition of insurrection. watch. >> when you look at section 3, the term "insurrection" jumps out. the questions are, what does that mean, how do you define it, who decides, who decides whether

someone engaged in it, what processes has justice barrett alluded to, what processes are appropriate for figuring out whether someone did engage in that. >> trace: is that really what it boils down to? what is your take-away? >> that's one of the things. i think they're going to try to stay away from insurrection because there are textual and process ways to decide this without getting to that. what justice kavanaugh was hitting on there is very important. obviously section 3 of the 14th amendment is ratified at the same time as section 5 of the 14th amendment, which empowers congress to enact provisions to enforce the terms of the 14th amendment. one of the things that congress enacted shortly after that is what comes down to us today, the insurrection statute in criminal law. so it's not like congress hasn't been heard on this.

there is a way to prove 1 is an insurrectionist but not only trump, none of the 1,200 people that have been charged have been charged with insurrection. >> trace: sol, back to you now and the documents. we can see the pictures of the documents in the president's garage here. as david spunt was saying, these were in tattered boxes. they found them in the garage, they found them a couple of different times inside the delaware house. as mark was alluding to, you had larry kudlow yelling off camera during last show that look, he can't take these documents as a vice president. you can't take them as a senator. he did. does that change your perception of the treatment of the former president in documents versus the president in these documents? >> well, it adds to the trumpian argument of a two-tiered justice system. you can make that argument in several areas, not just in terms

of the documents case. i mean, look at what the d.c. circuit did recently in their immunity case. forget about the fact that they rejected the president's broad immunity arguments. i understand that. but normally they give somebody 30 days for filing a petition. rehearing in front of the full circuit and they automatically stay the case. with trump, they didn't say it. they said you have seven days to go to the supreme court and get a stay there. there's many examples of a different standards, let's say, for former president trump than for other people. this is just another example of it. i absolutely agree with andy that this will be at least an 8-1 decision to overturn the colorado supreme court. the only question is how narrow the grounds will be. i think they will be fairly narrow. >> trace: marc, about 30 seconds to wrap us up on the documents

and biden in the delaware house. >> yeah, this is not just tried in court but also in the court of public opinion. during his trial, they're going to be showing all the pictures of madison square garden and the boxes splayed out on the floor. all trump is going to do is go out to the media and his team will show those pictures of biden's garage. what's the difference? for most americans, millions of americans will say donald trump is being prosecuted for this and joe biden got away with it. that's a two tiered standard of justice. that's why trump is heading back to the white house right now. >> trace: marc, andy, sol, thank you all. let's go now to the white house. jacqui heinrich is live there. jacqui? >> yeah, good afternoon to you, trace. you know, we haven't heard the president speak to this yet. he just left for virginia where he will speaking this afternoon. we kind of expected he might want to get a few words on this today. earlier this week, the president said he would take all of our

questions on thursday. we have a lot of them now. one interesting point to note as we're pouring through this 300-odd page report, the special counsel notes that it would be difficult for a jury to find the president guilty because of a number of different things that would cause reasonable doubt. a few of them being that he was vice president at the time that some of these documents appeared to have been taken and president at the time that a number of them were found and also that they cite his age and his memory as a reason why a jury might find him to be, you know, not guilty of some kind of a crime that would require, i think the word they used was a mental state of willfulness. so basically saying he's forgetful old man who accidentally took these documents home or at least that was the concern that a jury might reach that conclusion. that was part of the reason why

they ended up not seeking charges here. there are a couple of things coming out now from the white house. we've just gotten a statement from them saying they're pleased the investigation is concluded. special counsel found no criminal charges are warranted. they're citing the report there. it goes on to say as a special counsel report recognizes the president fully cooperated from day one. his team promptly self reported the documents that were found to ensure that they were immediately turned to the government. because the president knows that's where they belong. not only was there no obstruction, the president's cooperation throughout his 15-month investigation has been extraordinary. that appears to me to be a little swipe at the president's likely opponent this november, donald trump. the simply truth, the statement goes on to say as president biden takes classified information seriously, tries to protect it, as the special

counsel report acknowledges mistakes when packing documents at the end of an administration or when members of congress leave office are unfortunate will a common occurrence. it's happens with every administration, republican and democrat the path 50 years. now this investigation has concluded, president biden plans to take new substantive action to help prevent mistakes in the future and will announce it soon. it goes on to say we disagree with a number of inaccurate and inappropriate comments in the special counsel's report, nonetheless, the most important decision the special counsel made that no charges are warranted is firmly based on the facts and evidence. so be curious to know what points of this report the president and his team would like to refute or counter. but as we are pouring through it, there's certainly a lot to digest. a lot to go over. hope to hear the president speak to that later this afternoon when he returns to the white house, trace. >> trace: yeah, you called it

earlier, when you said -- we'll get back to you as the news breaks. let's bring in fox news legal editor, kerri urbahn. you look at this whole thing. my question would be from a lay man's standpoint, my question would be, you know, does the special counsel have the authority to say, listen, or is it proper for the special counsel to be able to say at trial that they would find out he's an old man with a bad memory and wouldn't convict him. he night not win the next election and a lot of things. is that for a jury to decide in is that something that you find interesting? >> i thought it was interesting that he included it, yes. certainly it's an embarrassment to president biden. it feels like a shot at him as

well. special counsels have wide discretions as to what they can include in their report. take bob mueller's report. it was my job when i was at doj to disseminate that to the press and be there to facilitate their questions before -- after the attorney general at the time did a press conference. so remember that report, trace? there were hundreds of pages of extraneous information. there the special counsel concluded that he wasn't going to bring any charges. we know now that he was trying to set trump up for impeachment. the point being that a special counsel can put in whatever they want in a report and make recommendations. they say look, we think he willfully retained that, which was interested that they said that. we don't think that will convince a jury beyond a reasonable doubt that he had the intent necessary to get that over the finish line. >> trace: do you think this report might be beneficial to the former president in his case because as jacqui was pointing out, the special counsel said look, this happens all the time. it happens to everybody over the past -- every president the

past, you know, every high-ranking official. it happens all the time. and then they're going to argument but in trump's case, you know, he tried to fight this. >> yeah, you know, it raises a number of questions. one, just the average person and certainly i do. i look at this and i looked at these situations and i think, why does anyone need classify information once they leave office? what are they doing with that? so i think separately, i think there's needs to be some tightening up of how we do classified information and handling of that in this country. clearly to your point, trace, it's this on going issue. with the former president, i think there may be some obstruction issues in his case that distinguish that from joe biden's that are more analogous that happened with hillary clinton several years ago versus what's happening right now with the current president. certainly this report is embarrassing for joe biden. again, interesting that rob hur did say that they found that he willfully detained this

information, which is significant. >> trace: and knowing what we know what is in the report, i want to go back a couple weeks to january 12th when the president said this about the documents being in a locked garage. watch. >> by the way, my corvette is in a locked garage. it's not like they're sitting out in a street. people know i take classified documents and classified material seriously. i also said we're cooperatingfully and completely with the justice department's review. >> trace: apologies. that was a year and a few weeks ago that the president said that. but now we hear in this report these boxes were tattered. they found these things in different places. we know the garage was opened and closed. we know hunter biden was staying there. a lot of that stuff wasn't addressed by this. should it have been? are you surprised that this report while it was embarrassing was not a little bit more biting when it came to the legal problems of this? >> we're still going through the report. 345 pages.

i feel like i'll have a better, more well-informed opinion once i go through it myself. yeah, i think what joe biden did here is sloppy at a minimum. tremendous oversight. it's embarrassing, again, why he had this in the first place, why is he storing it next to his car in the garage. it's a bad look. whether it's joe biden or anyone else. is this a characteristic that you want as part -- for the leader of the free world. you know, this kind of sloppiness. so i think it's certainly a political problems for joe biden. as we found out today, it's not going to be a legal one for him. >> trace: kerri, stand by. i want to go back to david spunt. he's live at the doj. he's kind of going through these 345 pages. david, who are you finding? >> yeah, it's a lengthy report, trace. i think a very important point that we want to make from our colleague, gillian turner who has national security background that says the biden handwritten notes that he took during nsc

meetings are property of the federal government. they're not his property. just the same as some of the documents that president trump took. they're federal government property. so that equates that case in that respect. sol and andy mccarthy and others will say the cases are very different. even kerri as well. i want to point out something. the special counsel to the president, richard sober, the lawyer to the president, said in his -- the last line in his statement, we disagree with a number of inaccurate and inappropriate comments in the special counsel's report. typically you hear somebody criticizing inaccurate reports. perhaps this one on page 208. it says "in his interview with our office mr. biden's memory was worse. he did not remember when he was vice president. forgetting 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." "he did not remember when his son, beau died and his memory was hazy when describing the afghanistan event that was once so important to him." that might be the reason that the lawyer for the president mentioned there's an inappropriate aspect to the comments. special counsel, robert hur is independent. he trans minted his report to attorney general garland who made it fully available with no redactions at all. also important to note, the white house had no redactions as well. >> neil: thank you, david. let's bring in jonathan turley, g.w. law professor and fox news contributor. professor, i want your overall take on the documents and the fact that there's no criminal charges, but it was somewhat embarrassing and again and again

the special counsel, which the white house counsel is saying is inappropriate to make the comment about the president's memory. his capacity. your thoughts. >> well, of course, the problem with being a sympathetic potential criminal defendant is not the stuff that makes you particularly compelling president for the next term. you know, the report makes himself sound like vincent the chin. he used to show up in pajamas and insist he couldn't remember anything. so that's not exactly what you want when you're running for a second term for president. what is striking is how the report comes back repeatedly to the fact that the president could not remember critical facts. but the report itself said that necessary documents were willfully retained. you know, the pictures of these boxes should obviously be

alarming. you know, it's -- you can hardly argue that chinese intelligence are just naturally afraid of open boxes. you know, this is an incredible breach of any measure of security. so it's going to raise obvious comparisons to trump. there are distinguishing factors. trump did have a subpoena. the government is arguing that he intentionally obstructed that process. this is all combining in a way that i think is troubling for a lot of people. they see all of these different efforts to prosecute trump, the effort to remove him from the ball lot and now conversely, you have the doj saying we just think you'll be too sympathetic. so we're not going to charge president biden. >> trace: i find it interesting because now members of congress are sending out their statements, professor. you had gerald nadler saying at the end of his statement here, the contrast talking about biden

and trump. the con ras -- so the basis you think of the democrat's case is seeming to be, well, look, he didn't cooperate. had he cooperated, we wouldn't be here. the president or the former president's basis for that was saying that he was the president. he had the right to do this and he believed he had the right to do this. fair? >> it is fair. i have said all along that i considered mar-a-largo to be the much more serious threat to former president trump. there's seven inflicted wounds in that indictment. he could have cooperated to a greater extent. the question is whether it warranted those criminal charges or simple -- or as many of them. they could have charged him with

object instruction. instead, they hit him with this long litany of criminal charges. for critics with regard to trump, they really throw everything they can at him. really pushing definitions to their limit. when it came to president biden, you have this inversive response where they take narrow interpretations and a more cautious approach. now, the question is, what would have happen if president biden could answer these questions? since they determined that he willfully retained these documents, what would have happened if his memory was better? the answer is it might have been much worse for him in terms of a criminal charge. some of these documents reportedly go back to when he was a senator. those documents had to have been removed from skiffs. you don't do that by accident. many of us that do national security work can tell you going

in to a scif is an exacting process. >> trace: i brought that up earlier with the legal panel. is it fair or is it proper for the special counsel to say, listen, his memory is bad. a jury would see it's bad. he can't remember these things. is that the best legal argument to not bring charges to say, well, you know, there's no chance of conviction because who will convict him because he rememr anything. he couldn't remember at one point as david spunt said. i'm sorry. when did i first stop becoming vice president? you didn't know when he stopped becoming vice president. now he's running to be the president again. you think well, now the special counsel last said, no chance for a conviction here because he can't remember any of this stuff. >> right. it will be interesting to see the pivot, trace for what it was used as an effective criminal defense and who will now have to

be made in terms of a call for re-election. it certainly helped him a great deal to say, you know, i just don't remember. i'm rather elderly. and i can't even remember the year that i stopped being vice president. to pivot on that point in this campaign is going to be something really to behold. now he has to argue that no, that's not true. i'm as sharp as a tack. so the disconnect maybe somewhat glaring for voters. >> trace: it really is. for me, you look at this -- again, i don't have the legal perspective you do. a lot of people quickly going back to this, a lot of people that are looking at this and if you're a trump supporter or biden supporter without the legal minutia are going to look at these cases as joe biden did not get the -- the president did not face any charges. yet donald trump is facing all of these charges for what they interpret to be the very same

issue. >> right. the department of justice clearly did not view trump as a sympathetic department or that he was too old. you know, they've gone after him now in two jurisdictions and the state prosecutors are going after him in other jurisdictions. for the public, the question is that -- how important is that determination? it's true that convicting joe biden in washington d.c. is going to be more difficult than doing the same with donald trump. however, if you believe that the up willfully retained documents and violated the same laws, should that itself be determ determinative? >> it's a very fair point, professor. thanks for your time. we appreciate it. let's bring in katie pavlich, robert wolf, former economic adviser to president obama and

founder of 302 advisers. he was with president obama last night. it's not just the documents and the report coming out that says biden's memory is shot and he can't remember a lot of things including when he left the white house as vice president. your time with him last night, how did he seem? >> he was great last night. he spoke about 45 minutes about democracy being on the line. spoke a lot about ukraine and taiwan and israel and the need to pass the foreign policy dollars and cents that just got passed 67 to 32. he spoke about why this election is critically important. i should mention one thing on the document case. i'm proud that president biden didn't use executive privilege at all with the trump appointed special prosecutor. think about whether president trump would ever go down that path of not using executive

privilege when he says he has full immunity on everything. if you ask me, there's a difference there. >> trace: katie, that's the point thathe was bringing up. no, no, he was sharp last night. it was all perfect. then you have the special counsel saying he can't remember when he left the white house. he can't remember anything, a jury would never convict him because he's an old man with a bad memory. now he's saying no charges there, i have a bad memory but man, am i going to make a great president at the age of 82. >> well, first, a lot of people will be surprised to know that just having a bad memory gives you an excuse to willfully detain classified information when you're leaving the u.s. senate or the vice presidency in both positions he did not have declassification authority and yet here we are with this report. it's 388 pages long. there's a lot in here.

there may not be charges for president joe biden, but this certainly is an indictment on his mental state given what is in black and white in this report. it comes at a horrible time for the white house when just today karine jean-pierre has gone from telling peter doocy she's not going to go down rabbit holes talking about why president biden is talking to dead people earlier in the week and last night at a fund raiser to today, the special counsel who has been investigating this that did these interviews with the president, people asking questions and they're saying, he's too old to answer basic questions about classified information, which brings up questions about how he will lead the country politically. and also there's the accusations the biden campaign has lodged against the trump campaign and his classified documents case and the national security implications here when it comes to foreign policy and being the commander-in-chief. >> trace: sean duffy, it gets worse than that. karine jean-pierre was talking

about, you know, there was this and this. she was asked about the president talking about someone who has been dead for the better part of three decades. she spun and it was all now about january 6th. this is about january 6th she said. it had -- where is she going with this? that had nothing at all to do with january 6th. so now you have the white house spokesperson saying no, no no. it was about january 6th. not really about his memory. he was trying to make this point. what? >> exactly. she's trying to be cute and creative and proud of herself that she brought the question back to january 6th. the american voters see that and knows that joe biden is talking about world leaders that have been dead for some time. they again agree with robert hur. he's a senile old man. robert wolf, what you saw last night is not what the american people see when they see joe biden on television. it's interesting. having these documents is like running a red light.

either you did or didn't do it. there's not a lot of argument around it. joe biden seems to have good mental status when he was a u.s. senator and took those documents out of a scif. i was in congress. it's nearly impossible to get documents out of the 65 in congress. when he left the vice presidency, he seemed to be fairly cognitively sharp. at that time he took the documents out. so yes, he might not be able to remember today, but you don't need his memory. you have the documents. he took them when he was in office. i don't care what joe biden says. i have a smoking gun in the picture you have up there on the screen that he took the documents. he should have been prosecuted like trump or neither should have been prosecuted. >> trace: i want to read, robert, on page 208. it says in his interview with our office, mr. biden did not remember when he was vice president forgetting on the first day of the interview when his term ended. if it was 2013, when did i stop being vice president was the question. forgetting on the second day of the interview when his term

began in 2009. am i still vice president? he did not remember even within several years when his son, beau, died and his memory appeared hamas when describing the afghanistan debate that was once so important to him. other things that he said he had a real difference of opinion with general carl ickenberry who was an allied that mr. biden cited in his thanksgiving memo to president obama. you said he was sharp as a tack. this report brings up -- there's more than just six or seven different examples of him not remembering. just to this week, as sean's point was, you know, he's not doing a super bowl interview. he's not giving press conferences. the former president sat in front of the cameras today and gave an entire news conference on what he thinks the supreme court decision is going to mean for him. we haven't heard from joe biden in quite some time. so it's hard to make -- for the

country to believe the argument that he's sharp as a tack. when you read this and you hear some of the current statements and the absolute fact that he's not going to go before the country and answer a few questions from cbs, which is not going to exactly throw him nolan ryan curveballs. >> a lot to unpack there. i'm glad you're only referencing six or seven paragraphing out of 300-plus pages. i'd give him a good grade for that. let me be clear. i care about what he's done as president legislatively. i care what he's done from a foreign policy perspective. i'm glad we passed the money for the ukraine-taiwan and israel today. we passed the infrastructure bill. bipartisan. president trump was talking about infrastructure and never passed it. we should spend time on looking at our successes, okay, as opposed to when he slipped on a

bit of a confusion on a 45-minute speech. we all know what i'm talking about. >> trace: okay. katie pavlich to you. it seems to me like there is mounting evidence that maybe some people when they have these polls that show, you know, 23% of the voters think that he has the ability to become -- to be president again because of his mental acutie. >> trace, you mentioned lack of access to the president. tuesday he said he was going to talk to reporters today, thursday afternoon. that he would answer their questions. karine jean-pierre at the white house had to walk that back. let's not forget the white house and members of the judiciary committee leadership on capitol hill have had this report for probably a couple days now, at least 24 hours. they probably knew this was coming. now president joe biden will land back on the south lawn and

shouted questions from reporters instead of asking -- answering them from the podium in the briefing room, for example. so they're not allowing the american people to get answers on the issues that he supposedly wants to talk about outside of this report. it also goes back to the issues that he's been facing over the past three years with the scandals that have been piling up, including his partnership and affiliation with hunter biden. hunter biden stayed in the wilmington delaware house during covid. that's where he was in lockdown. he had access to that garage. there's photos of him driving the corvette with the boxes in the background, with people, strangers in the car who does have background checks, that don't have security clearances. so this opens up a whole other issue for the white house. they have tried to avoid talking about that and there's big questions about why he wanted to keep the classified information, what was the purpose of that, especially given that hunter biden had so much access to it and he was working with people around the world who do not like

the united states of america and do not have the best interests of this country in mind. seems like he should be more responsible as president than that. >> trace: katie makes a good point. his son had a substance abuse problem, had access to that house, had access to the garage. sean duffy. we have to go. i want your final thoughts. it goes deeper. we have this every single week, there's -- we have the videotape that we can play for a long time on some of the president's gaffes and so forth. i want you to wrap us up on this. >> so hunter biden has pictures with the ccp. a picture is worth a thousand words. that's not a crisp box that's been sitting around for six or eight years. someone has been using that box looking at files. was it hunter biden? what information was in the box? what information did hunt very access to? also, the penn biden center

where information was found also. received donations from companies that are chinese, but also have ties to the ccp. all of this wreaks to high heaven. again, we can judge hur and now judge joe biden on the stage in the campaign, this is no doubt part of a system that the american people look at that appears to be two tiered. joe biden with these boxes in his house, donald trump raided at 6:00 a.m. and charged. a two-tier system. >> trace: sean, katie, robert, thank you all, this is from page 7 of the special counsel report. evidence that mr. biden knew that he could not keep classified handwritten notes at home after leaving office. mr. biden who had decades experience with classified information was deeply familiar with the measures taken to safeguard classified information and the need for those measures to prevent harm to national security. asked about if president trump

kept classified documents at his own home, mr. biden wondered how anybody could be that irresponsible and voiced concern about what data was in there that may compromise sources and methods. he kept notes at home in unlocked doors. pat fallon joins me now. i'm not sure if you read through this report, congressman, about the biden documents. i want your initial thoughts on what you've heard. >> yes, i read through some. i have not read through them all. i'm appalled and really alarmed. the fate of humanity rests upon the job that the person that holds this office does. joe biden is clearly incapable of it. he doesn't remember -- certain memories are seared in to your

mind if you're healthy. that's like when your son dies. you know the year. you know when you served as vice president of the united states. i can tell you when james monroe served and i don't know james monroe. i never knew the guy. that's worrisome, trace. >> trace: it is. you go back to what the panel said earlier there. it's not just the actual documents that the former president had and document that the president had in his garage in delaware. it's the approach of both the cases. you have the fbi going to mar-a-largo. you have different approach. you have permission being asked for the president to be able to go through and look for these things. it's just a different perception. maybe it's right, maybe it's legally just the way these things were handled. but from the optics point of view, from the american point of view, it doesn't look like it's the same type of case. >> the doj was coddling one and they have the other in the cross

hairs. that's clearly -- let's explain to your viewers, too, trace, when we go in to a scif, we have to take our watches off. we can't use the air pods. we don't have anything with us that is electronic. you go back to 1970 as far as technology. when you leave, you can't take notes. if you take notes, they have to stay in the scif. so how did joe biden have boxes of classified information? this excuse of well, he's got a febil mind and he didn't remember. if they find two kilos of heroin and you say you don't remember how it got here, it doesn't matter. they're coming after you anyway. >> trace: that's fair. i also go back to some of the points that the professor turley made where, you know, it's interesting that as a legal argument that they made this not to file charges, made the decision partially based on the fact that the president would not -- any jury in their right mind would not convict him because he doesn't have a great

memory. you think, okay, there's a legal basis for that. it seems interesting at the very least that that is part of this. you think on the other side, as someone said earlier, what a great day for the former president because not only does it appear the supreme court is going to knock down the colorado supreme court decision to keep him off the ballot, it also appears that now he's got all of this information and all of this material that he can use in campaigns about the current president not being mentally on his game. >> let just break it down simply. let's say someone is driving 115 miles an hour and gets pulled over by a trooper. he says do you know how fast you were going? honestly, officer, i can't remember. essentially that's the precedent they're setting. i was having a private conversation with chris smith, a republican member of congress

since 1981. he's very good friends with joe biden. at least they were. he talked to him back in 2021. i asked him, is it the same person? he said no, he's a shadow of who he was. so he is not mentally competent. i can't believe he's lasted this long and we cannot re-elect him in november. >> trace: i want to read page 208 of the special counsel report here. it says here -- >> it paints a good picture of where these documents, how respected these document were and where they were just discarteded in a garage where anybody would walk in and get polling soil.

what is in the box over here? >> it reads like a bad lazy novel. this is stranger than fixture stuff. how in the world does he have possession of these? and why -- not even as if he had it in his home. like a gun safe or something. no, it was lying next to the whiffle ball that hunter plays with. my goodness. the guy is 50 going 0 on 10 as it is. >> trace: thanks, pat. >> thank you. god bless. >> trace: the special counsel released their findings about their look into my handling of classified document. i was pleased to see that they reached the conclusion that there would be no charges brought in this case and the matter is now closed. okay. let's bring in our panel. andy mccarthy, former federal prosecutor, sol wisenberg and marc thiessen, enterprise institute senior fellow.

all are fox news contributors. andy, i think we should start with you again. we started with you last time. you heard this conversation going on the past 45, 50 minutes. what do you make? have you changed your assessment of anything on these classified documents, charges not being filed and the release of quite frankly a ton of embarrassing information? >> yeah, i guess my first impression was that this is supposed to be about whether there's enough evidence to indict. as you read the report, i can't help but say sure looks like there's enough here to invoke the 25th amendment. i know that's not what he's looking at. his purpose is. his fitness for office is a major issue here. we have mentioned this a number of times, trace. one of the reasons -- seems like one of the core reasons that he didn't indict is because he decided and he says this himself, a jury would find him to be a sympathetic defendant.

because of his -- he's gracious enough guy, but he's forgetful, et cetera. if you're at the point of saying what a jury would assess, what that means is you have drawn the conclusion that there's in evidence evidence to indict the person and enough evidence to perhaps let the jury decide the case. what you now are down to is did he have the intent to break the law or not. that brings me to the third point. which is president trump is charged under the espionage act. that's section 793 of the criminal code. subsection f. the mental element that you as a prosecutor have to prove to make an offense under that statute is not willfulness. it's gross negligence. so i really don't understand how the fumbling, bumbling aspect of all of this helps him because if

the jury even merely believed that he was grossly negligent that would be enough to convict. >> yeah a good pivot to you, sol. they're projecting saying listen, this is what a jury would do. reminds me of the james comey speech about hillary clinton. just projecting what would happen if this went to trial. nobody know what's would have happened. if there's enough evidence for you to consider this might go to trial, maybe there's an argument that it should go to trial. >> first of all, there's no truth to the rumor that this report was ghost written by gavin newsome and his future campaign. just want to put that rumor to rest. that's number 1. number 2, andy keyed in on the real point here. remember from what you are reporting, the report says that

he did willfully keep and retain these documents. that is a very high standard. i assume in this context it means that he knew he was doing it in violation of the law at a minimum, it was deliberate. whatever his mental state is now, that is very serious. i think, you know, hur found himself -- they're always in inenviable positions. someone is always disappointed. on the one hand he's saying we're not growing to bring charges. biden is the president. you can't charge a sitting president. we're not going to charge him because he would be a sympathetic old man. but man, it's really, really damaging. damaging to the president. >> trace: it's very politically damaging. marc thiessen, i know you have something you'd like to read. go ahead. >> yeah, no, one of the most devastating things on page 248

where it says mr. biden's apparent lapses and failure likely are consistent with the diminished faculties and faulty memories that he has in the interview. we conclude the evidence is not established that bidenfully -- diminished faculties. what -- why this is so devastating and not devastating legally. i'll leave that to andy and the rest of the panel to discuss. it's devastating politically because who it has done is lifted the veil showing american people what joe biden is behind closed doors. he goes out and he stumbles in a press conference and they pull the rope on him and pull him back in. they can avoid a super bowl interview. you can't avoid an interview with the special counsel. if you sit down with the world leader and you deliver a world salad out of diplomatic concern, they're never going to show that to the world. the special counsel has shown us

what he is like trying to conduct a meeting about substantive issues. he can't do it. he can't remember what the arguments were, who the players were, who he's arguing for or against. they conclude that he has diminished faculties. that is -- that is going to be the closer add of any presidential campaign going in to the fall. we can't have a president with diminished faculties that can't remember basic facts and names. this is devastating. democrats ought to look and this and start thinking we need another candidate. >> trace: it brings it back to andy's 25th argument there. it's one of those things that we heard a lot about this during former president trump's tenure in office. it seems to me, andy, none of that now and who knows if that becomes part of the conversation. >> trace: there's objectively a lot more reason to worry about it. i don't mean to say that in a

bad way. we see this president when we get to see him. it's always difficult. the other point to make, trace, i'm struck with the little's been able to read through this so far about how concerned they are about exactly what they ought to be concerned about, which is the two tiers of justice and that whole allegation. there's a lot in here that seems to rationalize why we're not charging when president trump has been charged. the argument comes down to trump was co -- biden was cooperative with the investigators, but trump wasn't. that is not a justification for handling the classified documents and national defense information charges differently. what that would be a justification for is, okay, charge trump with obstructing the grand jury. if that's what bothers you, fine. get rid of the classified document stuff and deal with the

grand jury obstruction. what they're saying here is because they say that one guy was cooperative and one guy wasn't, we're going to throw the book including all the classify documents counts at trump and going to look away with biden because he's forgetful and old. >> trace: yeah, it does -- i have about two minutes left. i want you sol and marc. brings up a very valid point. >> you know, all i can say this is really -- again, i also haven't read the report. i just read snippets, this is astonishing to have these extra prosecutorial statements in the report. i know they're in there to show allegedly more about president biden. it's really striking. it's going to make it much easier for someone to mount a

challenge to him. >> trace: it's two fold here, marc thiessen. what is happening, you have this 345 page report which goes to great lengths to show why president biden does not belong in a courtroom. but it also goes to great lengths to kind of illustrate why maybe president biden shouldn't belong in the oval office. >> just another quote from the report, page 207 president biden's memory appeared to have significant limitations the time he spoke in 2017 and our reported conversations. he was often painfully slow with mr. biden struggling to remember events and straining to read and relay his own notebook entries. this is the commander-in-chief. there's a war going on in europe, there's a war going on in the middle east. there's a possibility of a war in asia over taiwan. the president -- the commander-in-chief struggled to read his own notebook entries in

a meeting with the special counsel? i mean, truly, andy is right. this is 25th amendment evidence. this man should not be president of the united states. >> trace: yeah. you can bet that the trump campaign will certainly have that argument again and again. andy mccarthy, sol wisenberg, marc thiessen. you can see the boxes on the right-hand side of the screen. we've been talking about the special counsel deciding there's no charges against the president for holding classified documents in his delaware home. but the report is damning otherwise. that's "the story" february 8, 2024. the story goes on. i'll see you back here for fox news at night. >> neil: all right. now we hurry up and wait. although we might not be waiting too long for a decision from the supreme court on whether a state can kick donald trump off of its ballot. welcome. i'm neil cavuto. let's get to it with shannon bream, the very latest