Former special counsel Robert K. Hur watches a video of President Joe Biden during the House Judiciary Committee hearing about his report on Biden's retention of classified materials.Tom Williams/CQ Roll Call/AP
At a House committee hearing convened by Republicans on Tuesday, Robert Hur—the former special counsel who investigated President Joe Biden’s retention of classified documents—became a bit of ping pong ball. Republicans used his report, which declared there was insufficient evidence to file criminal charges against Biden, to slam the president as a crook and to deride him as mentally incompetent. But they also pointed to Hur’s decision not to prosecute as a sign that there’s a double-standard in the Justice Department. The Deep State, Republicans asserted, had weaponized the system to protect Biden while simultaneously targeting Donald Trump, who has been indicted for swiping classified information and obstructing justice. (This conspiracy theory ignores the fact Hur is a registered Republican.)
The Democrats, meanwhile, hailed Hur’s report for noting that the Biden case is significantly different from the Trump case. Biden returned documents when first informed they were in his possession, consented to a search of his Delaware home, and cooperated fully with the investigation. Trump allegedly lied about what he had and took steps to hang on to the material and block the inquiry. But the Ds also excoriated Hur for depicting Biden in his report as “a sympathetic, well meaning, elderly man with a poor memory.”
The hearing was, of course, not designed to resolve questions and disputes surrounding Hur’s investigation but as a stage for political combat. It cast a bright light on the brazen hypocrisy of Republicans, such as Rep. Jim Jordan and Rep. James Comer, who railed against Biden and suggested he should have been indicted but who have had nary a word of rebuke for Trump regarding his alleged pilfering of top-secret records and his subsequent efforts to hide them and impede the investigation.
The hearing also put Hur on the hot seat for supplying partisan fodder to Trump and the Republicans.
When the Hur report was released last month, headlines and news stories zeroed in on that one line denigrating Biden’s memory. For Republicans, this was manna from heaven: an official report that backed up their relentless campaign to portray Biden as an out-of-touch dunderhead with diminished cognitive abilities. The GOP went to town, and many media outlets doubled-, tripled, and quadrupled-down on the Biden-is-too-old narrative, paying much less attention to Trump’s slip-ups and rambling sentences.
Hur had the right to discuss in his report what Biden could and could not remember during his two long interviews with Hur. (Trump did not sit for an interview with Jack Smith, the special counsel handling his case.) There is nothing wrong with a special counsel pointing out what an interviewee did or did not recall and whether there was a particular pattern. Depositions are typically loaded with I-do-not-recalls, as targets and witnesses are routinely told by lawyers to respond in that fashion if they are not absolutely sure about a recollection. When Trump provided written replies to questions from special counsel Robert Mueller, who was investigating the Russian attack on the 2016 election and Trump’s possible obstruction of justice, he repeatedly stated he did not recall the action, meeting, or conversation at hand—and many of these events had occurred within the previous year. Just last month, in assessing a massive fine against Trump for fraud, a New York judge noted that he found Ivanka Trump’s “inconsistent recall, depending on whether she was questioned by [the state AG’s office] or the defense, suspect.”
But with his characterization of Biden as a kindly old fellow with significantly diminished recall, Hur did much more than stick to the facts. He was stating a subjective opinion, and he did so in the form of speculation. This loaded comment came as part of Hur’s explanation of why he would not file charges against Biden, even if the Justice Department policy against prosecuting a sitting president didn’t exist. He noted that a prosecutor, in determining whether to bring a case, had to anticipate the line of defense a suspect would deploy at a trial. Hur wrote:
Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well meaning, elderly man with a poor memory. While he is and must be accountable for his actions-he is, after all, the President of the United States-based on our direct observations of him, Mr. Biden is someone for whom many jurors will want to search for reasonable doubt. It would be difficult to convince a jury they should convict him by then a former president who will be at least well into his eighties-of a serious felony that requires a mental state of willfulness.
Here was Hur predicting that Biden would try to play on jurors’ sympathies by presenting himself as a kindly elder with a shot memory. Would Biden do that? How could Hur know that? This is not a fact. As for stating that Biden appeared to Hur and his associates in this fashion, this characterization is open to dispute. A Washington Post analysis of the entire transcript of Biden’s sessions with Hur and his team concludes, “Biden doesn’t come across as being as absent-minded as Hur has made him out to be.”
During the hearing, Democrats lashed into Hur for tossing this explosive sentence into the nation’s already heated electoral debate. Rep. Hank Johnson (D-Ga.) accused Hur of mounting a “trash and smear” of Biden, noting that Hur must have been aware that including this description of Biden in the report would cause a detonation. Hur indignantly rejected the notion that “partisan politics” played any role in his report.
Rep. Adam Schiff (D-Calif.) drilled deep into this. “You chose,” he said to Hur, “a general pejorative reference to the president” that was sure to ignite a political firestorm. Hur clung to his position that “politics” had nothing to do with it. “You can’t be so naive,” Schiff shot back, claiming that Hur had to understand how these words would be “manipulated” by Trump and the Republicans. Hur did not say whether he realized or not what the impact would be. But it is hard to imagine that Hur, who came across as a savvy prosecutor, could have not seen how this observation would become ammunition for the political party of which he is a member.
Schiff pointed out that under Justice Department rules, prosecutors are “not to prejudice the interests of a subject” who is not indicted. Hur argued that sharing this characterization was necessary for explaining his decision not to recommend a prosecution. Schiff pounded him further, noting Hur had conveyed a “subjective opinion” that was “extremely prejudicial.”
“You were not born yesterday…It was a choice,” Schiff said.
Hur’s report had declared there was no criminal case against Biden, but with this one line, it became a political indictment of the president.
During the hearing, Jordan, Rep. Matt Gaetz (R-Fla.), and other Republicans hammered away on the issue of Biden’s age and mischaracterized Hur’s report as stating that the only reason he would not bring charges was because of Biden’s poor memory. Hur repeatedly attempted to correct this impression, noting that Biden’s lack of recall was merely one element of his decision. Yet for House Republicans, the hearing was not about accurately examining the finer points of Hur’s report. He had supplied them ammunition, and they were gleefully firing away.
