WASHINGTON — Special counsel Robert Hur has declined to prosecute President Joe Biden for his handling of classified documents but said in a report released Thursday that Biden’s practices “present serious risks to national security” and added that part of the reason he wouldn’t charge Biden was that the president could portray himself as an “elderly man with a poor memory” who would be sympathetic to a jury.

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” the report said, but added that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.”

The report from Hur — who previously appointed by former President Donald Trump as one of the country’s top federal prosecutors — also made clear the “material distinctions” between a theoretical case against Biden and the pending case against Trump for his handling of classified documents, noting the “serious aggravating facts” in Trump’s case.

“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,” it said. “Based on our direct interactions with and observations of him, he is someone for 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 into his eighties — of a serious felony that requires a mental state of willfulness.”

There you go — his impaired cognitive state precludes him from having the culpable mental state of willfulness required by the crime.

Just a refresher, crimes have both an actus reus — the culpable act — and a mens rea — the culpable mind. If you’re out hunting and you accidentally shoot a man wearing a brown coat, mistaking him for a deer, you can’t be prosecuted for murder, which requires intent as a mental state (or such extreme recklessness that shows a depraved indifference to human life).

This particular crime requires “wilfulness,” which is an intermediate mental state, short of “intent,” but a couple of steps above mere negligence (aka carelessness, lack of concern over something the law demands you have concern and care about). It’s something like, “you may or may not have intended to do this thing, but you acted so unconcerned that your actions would result in this thing that we call you ‘willful’ with respect to your indifference to the outcome of your actions.”

Like if you get smashed-out drunk and go for a drive. You may not have intended to kill the person you wind up running over, but you made a series of decisions which were willful in their indifference to the very real possibility you’d kill someone.

Note this doesn’t mean that Biden didn’t have intent — just that the law doesn’t require it. A “higher” mental state, like intent, is always sufficient to satisfy the requirement of a lower one, like willfulness.

But the law says that the state doesn’t have to prove you intended to retain classified information — just that your actions were likely to result in this outcome, and you willfully chose to take those actions anyway.