Last week, Special Counsel Robert Hur released his report clearing President Joe Biden of any criminal wrongdoing in his handling of classified documents following his term as vice president. In justifying the decision, the report referenced Biden’s cognitive signs of aging, prompting a swift denial from the White House. Thomas Gift analyses the legal reasoning behind Hur’s invoking of Biden’s mental state, as well as why critics say it unduly introduced politics into the case.

President Joe Biden received good news and bad last week with the release of Special Counsel Robert Hur’s report into the president’s alleged mishandling of classified documents following his time in the Obama administration. The good news: Biden won’t face a criminal indictment. The bad news: the report heavily insinuated that Biden is showing cognitive signs of aging.

In a scathing, 345-page report, Hur characterized Biden as “a sympathetic, well-meaning, elderly man with a poor memory.” He recounted how Biden had trouble recalling the dates of when he was vice president and couldn’t conjure up even a remote approximation of when his son Beau died. Unsurprisingly, the characterization didn’t go over well with the White House. Biden’s team labeled Hur’s rhetorical punches “prejudicial,” “inflammatory,” and “gratuitous.”

Did Hur overstep his mandate in focusing so much on Biden’s supposedly poor memory? Plenty of experts think so. For example, former FBI general counsel Andrew Weismann blasted the report’s focus, labeling the description of Biden’s lapsed recalls “[e]ntirely inappropriate” and insisting it’s “not the role of the Department of Justice.” Former federal prosecutor Mimi Rocah similarly claimed that Hur’s depictions of Biden’s poor mental acuity were “totally gratuitous.”

Are they right?

Biden’s mental state was part of the special counsel’s argument

A key role of the special counsel is to explain the rationale for charging or not charging the subject of an investigation. Hur clearly didn’t think that a conviction was in the cards. That’s not because he found that Biden did nothing wrong in handling classified dossiers. At least in part, it’s because Hur didn’t expect that a guilty verdict was forthcoming.

Hur believed it would be hard to prove intent — namely, that Biden willfully and maliciously kept classified documents in insecure locations. “In a case where the government must prove that Mr. Biden knew he had possession of [classified documents],” the report stated, “we expect that at trial, his attorneys would emphasize these limitations in his recall.”

Defenders of Hur insist that there was no other way to explain this justification if he didn’t detail why Biden would be a sympathetic defendant. The only option was to document, with receipts, Biden’s ailing mental state.

That’s precisely what he did. The question is whether Biden’s sharpness now is as relevant as years ago when he first stored the documents. That hinges on whether one views the mishandling of documents as a persistent and ongoing act.

A thumb on the scale of politics?

The opposing argument is that Hur did exactly what a special counsel isn’t supposed to: muddy the water with politics.

It’s no secret that Biden’s age—he’s 81—and speculation about his failing cognition, have become a centerpiece of criticism against his re-election campaign. Even if this weren’t true, the political ramifications of the descriptions were both obvious and foreseeable.

The Justice Department is meant to act apolitically in its investigations and prosecutions. The chief reason for Attorney General Merrick Garland appointing Robert Hur, a registered Republican, as special counsel was to diminish even a semblance of political partiality toward the president.

When an individual isn’t charged in a criminal case, federal officials typically follow a norm of not editorializing. This is exactly what raised eyebrows when former FBI director James Comey gave his unsolicited opinion on Hillary Clinton’s alleged improper storage of emails in 2016.

For critics, Hur made a similarly egregious error. Even worse, some say, Hur may have taken these not-so-veiled shots to compensate politically for the fact that he wasn’t recommending charging Biden with a crime.

No one’s happy

The irony of Hur’s report is that it will anger both liberals and conservatives.

Democrats will maintain that Hur overstepped his boundaries. Republicans will assert that he introduced a two-tier system of justice by letting Biden off the hook for an offense, even as Donald Trump faces charges by another special counsel, Jack Smith.

“Splitting the baby” makes no one happy. Hur can take solace in the fact that he’ll be denigrated across both sides of the aisle. 

Please read our comments policy before commenting.

Note: This article gives the views of the author, and not the position of USAPP – American Politics and Policy, nor the London School of Economics. 

Shortened URL for this post: https://bit.ly/49caovP