GEOFF BENNETT: And I'm Geoff Bennett.

On the "NewsHour" tonight: The U.S. Supreme Court sounds skeptical as it hears arguments

about whether Colorado can bar former President Donald Trump from the state's primary ballot.

AMNA NAWAZ: The Justice Department says President Biden willfully withheld classified documents,

but will not seek charges.

GEOFF BENNETT: And a new report details the destruction of the Ukrainian city of Mariupol

and accuses Russian forces of war crimes.

IDA SAWYER, Human Rights Watch: This operation really stands out as one of the worst chapters

of Russia's full-scale invasion of Ukraine so far.

(BREAK)

AMNA NAWAZ: Welcome to the "NewsHour."

The Justice Department has declined to prosecute President Joe Biden for his handling of classified

Obama era documents which were found in his former office in Washington, D.C., and at

his home in Delaware.

GEOFF BENNETT: In a 345-page report, special counsel Robert Hur wrote -- quote -- "We conclude

that no criminal charges are warranted in this matter."

President Biden offered his first public comments about the report earlier this evening.

JOE BIDEN, President of the United States: The special counsel acknowledged I cooperated

completely, I did not throw up any roadblocks, I sought no delays.

In fact, I was so determined to get the special counsel what they needed, I went forward with

a five-hour in-person interview over the two days of October the 9th -- 8th and 9th last

year, even though Israel had just been attacked by Hamas on the 7th.

I was especially pleased to see the special counsel make clear the stark differences between

this case and Donald Trump.

The bottom line is, the special counsel in my case decided against moving forward with

any charges.

And this matter is now closed.

GEOFF BENNETT: Let's bring in Oona Hathaway, a professor at Yale Law School and a former

special counsel at the Pentagon.

Thank you for being with us.

So this investigation found that President Biden had willfully retained classified material

after finishing his term as vice president and that he had shared sensitive information

with a ghostwriter who helped him with his 2017 memoir.

The president isn't facing charges in what would typically be considered a felony.

Does this outcome comport with the facts and evidence in the case?

OONA HATHAWAY, Yale Law School: I think it does.

I mean, I think that this report is sort of balancing on a very thin line.

It concludes, as you say, that, in the opinion of the investigators, that he did act willfully,

but it determines that they don't believe that they would be able to persuade the jury

of that.

And there are a number of reasons they don't think a jury would be inclined to believe

that in fact he behaved willfully.

And that's a heightened, intense standard that's necessary to prove a violation of the

provisions of law that are at issue here.

And so that's why they declined to prosecute.

But it's why the report sort of reads sometimes, like on the one hand, it's saying that he

in fact acted in contravention of law, but on the other hand they're declining to prosecute.

And that's the distinction here.

GEOFF BENNETT: And the separate investigation into Donald Trump's mishandling of classified

documents, that resulted in 40 criminal counts against him.

Remind us of the significant differences here, why Donald Trump is being prosecuted and President

Biden isn't.

OONA HATHAWAY: Well, the main difference here is that, when former President Trump was asked

to return these documents by the National Archives several times, he declined.

It was demanded.

He again declined.

He was told that he was unlawfully retaining classified information and documents.

He again declined.

And it took a raid of Mar-a-Lago to excavate those documents and bring them back into government custody.

By contrast, when President Biden was notified that he may have retained classified documents,

and, in fact, it was his own staff that discovered the possibility that there may have been retained

documents initially at his office at the University of Pennsylvania, they disclosed that to the

government directly, and then he fully cooperated.

So he -- as he said in that clip that you read -- or that you played, he sat for a five-hour

interview.

He opened up his homes for searches.

He turned everything over that he had.

So that was a very different response.

And it suggests that he didn't mean to be intending to be holding this classified information.

And I think the government really took that into account in determining whether they thought

that they could persuade a jury that he meant to be unlawfully retaining classified information.

GEOFF BENNETT: And, on that point, Oona, the special counsel, Robert Hur, in this case,

said that he chose not to bring charges in part because -- this is from his report -- "Mr.

Biden would likely present himself to a jury, as he did during our interview with him, as

a sympathetic, well-meaning, elderly man with a poor memory."

Now, in response to this, the White House counsel and the president's personal attorney,

Bob Bauer, wrote a letter where they took issue with that.

And they said that: "The report uses highly prejudicial language to describe a commonplace

occurrence among witnesses, which is a lack of recall after -- of years-old events."

This report reads like more than a recitation of facts.

Does it cross the line into excess?

OONA HATHAWAY: Well, it's interesting.

I mean, the report, when you read it, it's clearly written for a public audience.

It's not written like a normal legal document.

It's not written in legalese, really.

And certainly the beginning summary is written with a kind of audience in mind.

It's written with a public audience in mind and certainly with reporters in mind.

And it does characterize some of these events in ways that are kind of striking.

That was one of the lines in particular that sort of jumps out.

I mean, one way to read that and one way to say that differently would be to say, look,

this is many years later, he doesn't remember the exact contents of the documents.

And they go on later to explain that one of the reasons for that may be that, in fact,

he may not even have known what documents exactly were removed from his office because

he didn't actually pack many of these boxes himself.

In fact, very -- he didn't really pack any of these boxes himself.

And he didn't direct that many of these documents be removed.

And so the extent to which he actually knew some of these classified documents were in

his office is hard to determine.

And so when they were asking him some of these questions, he wasn't recalling all the details.

And that makes it hard to prove, I mean, because you have to show that there was intent, that

he knew he had classified documents, that he had removed them, he intentionally retained

them, and he knew that in doing so that he was acting unlawfully.

And that's what you have to prove to convince a jury to convict.

And I think, rightfully, the special prosecutor here decided that they just didn't have the

information that they would need to be able to convince a jury of that.

GEOFF BENNETT: Yale Law School Professor Oona Hathaway, thanks so much for your insights.

We appreciate it.

OONA HATHAWAY: Thanks for having me.

AMNA NAWAZ: The U.S. Supreme Court today heard arguments in a landmark election case looking

at whether former President Donald Trump's actions on January 6 should disqualify him

from appearing on the Republican primary ballot in Colorado.

For over two hours, the justices scrutinized an obscure provision in the 14th Amendment

at the center of this case.

That provision says that former elected officials should be barred from holding office if guilty

of insurrection.

Former President Trump weighed in after the arguments concluded.

DONALD TRUMP, Former President of the United States (R) and Current U.S. Presidential Candidate:

You're leading in the country by a lot.

And can you take the person leading everywhere and say, hey, we're not going to let you run?

I think that's pretty tough to do, but I'm leaving it up to the Supreme Court.

AMNA NAWAZ: Our own William Brangham and Supreme Court analyst Marcia Coyle were both at the

court today and join me here now.

It's great to see you both.

WILLIAM BRANGHAM: Hi.

MARCIA COYLE: Good to see you.

AMNA NAWAZ: So, William, we reported on this last night, but just remind us, what is the

main argument in Colorado's case here?

WILLIAM BRANGHAM: A group of Republican voters in Colorado watched January 6 happen, and

they said that was an insurrection and Donald Trump was responsible for it.

And so they petitioned their state to say that, under Section 3 of the 14th Amendment,

which is the so-called Insurrection Clause, that he should be disqualified from running

and from becoming president again.

Section 3, if you remember, basically says that, if you're elected to office and you

swear an oath to the Constitution, but then you commit an insurrection, you're ineligible

to be in office again unless two-thirds of the Congress wipes that stain away from you.

And so they argued this to their -- went all the way up to the Colorado state Supreme Court.

A split decision sided with them.

That was the case that was being argued today.

AMNA NAWAZ: And, Marcia, in listening to this, which I have to say is so cool to be able

to do, but it didn't sound like it broke along partisan lines, right?

Justices on both sides had questions and issues.

One major question was about the power of states in enforcing that Insurrection Clause,

Section 3.

Chief Justice John Roberts actually said this:

JOHN ROBERTS, Chief Justice of the U.S. Supreme Court: In very quick order, I would expect,

although my predictions have never been correct, I would expect that 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, and it'll come down to just a handful of states

that are going to decide the presidential election.

That's a pretty daunting consequence.

AMNA NAWAZ: Marcia, what exactly are his concerns here?

MARCIA COYLE: Well, I think, as you mentioned, the key issue that the justices did appear

to be most interested in -- and that's across the bench -- was the -- whether the states

have a role to enforce Section 3 against non-state candidates like a president.

And Mr. Trump's attorney argues that they have no role at all, absent congressional

legislation giving them authorization.

The Colorado lawyer argued that the states have broad power under Article 2, the Electors

Clause, in order to run elections, and that includes enforcing qualifications for the

ballot.

So the chief justice took it a step further, and he asked the hypothetical, assuming states

do have the power to do this, is this what's going to start happening?

You're going to have different states with different standards, different definitions

of, for example, insurrection and different rules for holding a trial on that, and it's

just going to be -- become very political?

There's going to be retaliation.

If they throw a Republican off the ballot, a state that is upset about that might throw

a Democrat off the ballot.

And that's when I felt the arguments also started to turn quite a bit against Colorado

and in favor of Mr. Trump's arguments.

So, that's what the chief justice was basically saying, and it

was picked up by other justices voicing similar concerns.

WILLIAM BRANGHAM: I mean, to that point, it is what you were saying, Amna, about how this

really did split along -- not split along ideological lines.

Another issue that did come up was this question of whether Section 3 actually applies to the

presidency, because, in the clause -- in the section itself, it lists all the different

offices that could be disqualified if you commit an insurrection.

President is not mentioned in that list.

Everyone sort of assumed they meant it, but Ketanji Brown Jackson picked that up today.

Let's listen to what she had to say about that.

KETANJI BROWN JACKSON, U.S. Supreme Court Associate Justice: But then why didn't they

put the word president in the very enumerated list in Section 3?

The thing that really is troubling to me is, I totally understand your argument, but they

were listing people that were barred, and president is not there.

JASON MURRAY, Attorney Representing Colorado Voters: This came up in the debates in Congress

over Section 3, where Reverdy Johnson said, why haven't you included president and vice

president in the language?

And Senator Moore responds, we have.

Look at the language, any office under the United States.

And...

KETANJI BROWN JACKSON: Yes, but doesn't that at least suggest ambiguity?

And this sort of ties into Justice Kavanaugh's point.

In other words, we had a person right there at the time saying what I'm saying.

The language here doesn't seem to include president.

Why is that?

And so, if there's an ambiguity, why would we construe it to, as Justice Kavanaugh pointed

out, against democracy?

AMNA NAWAZ: It's fascinating how much of this goes around just the language at play here.

But, William, did they ever address that central point you mentioned there, that January 6

was an insurrection, that President Trump was responsible in some way for it?