Marcy Wheeler, at her Empty Wheel blog, submits the nearly 400-page Robert K. Hur report to a close textual analysis and concludes that his long-winded effort to find evidence of Biden’s criminality produced nothing other than his gratuitous and mean-spirited comments about Biden’s mental health. The full post is not reproduced here. Open the link to finish it.

She begins:

In the middle of his explanation for why he believed that Joe Biden had willfully retained classified records pertaining to Afghanistan but that he couldn’t prove that beyond a reasonable doubt, Special Counsel Robert Hur admitted that jurors “who are unwilling to read too much into” what Hur describes as an 8-word utterance would find his case lacking.

But reasonable jurors who are unwilling to read too much into Mr. Biden’s brief aside to Zwonitzer–“I just found all the classified stuff downstairs”–may find a shortage of evidence to establish that Mr. Biden looked through the “Facts First” folder, which is the only folder known to contain national defense information. These jurors would acquit Mr. Biden of willfully retaining national defense information from the “Facts First” folder.

I’m puzzled how this is not a confession that he, Hur, was really reading too much into two file folders the FBI found in a box in Biden’s garage.

Indeed, that’s what two bizarre chapters in his story are, Hur the novelist, spinning a story about this box because, he admitted much earlier, this is the best he’s got.

As explained in Chapter Eleven, the strongest case for criminal charges against Mr. Biden relating to the Afghanistan documents would rest on his retention of the documents at the Virginia home in 2017.

The only other retained documents he even considered charging were Biden’s diaries, which Biden seems to have kept under the Presidential Records Act’s exclusion of diaries from the definition of Presidential Records (though Hur included a picture of Biden taking notes in one of these notebooks during a key meeting in the Situation Room, so that notebook, at least, was a Presidential Record).

(3) The term “personal records” means all documentary materials, or any reasonably segregable portion thereof, of a purely private or nonpublic character which do not relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term includes–

(A) diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal which are not prepared or utilized for, or circulated or communicated in the course of, transacting Government business;

To sustain his claim that those notebooks represented willful retention that he couldn’t prove, Hur got in a squabble about the precedent set by Ronald Reagan’s diaries, which similarly included classified information, but which weren’t charged even after they bcame key evidence in the Iran-Contra investigation. Biden had a precedent to rely on, and so Hur didn’t charge.

So left with only the box in the garage to appease the Republicans, Hur worked backward from this reference in a conversation Biden had with his ghost writer in 2017, the 66-word utterance on which he built a 388-page report:

So this was – I, early on, in ’09-I just found all the classified stuff downstairs-I wrote the President a handwritten 40-page memorandum arguing against deploying additional troops to Iraq-I mean, to Afghanistan-on the grounds that it wouldn’t matter, that the day we left would be like the day before we arrived. And I made the same argument … I wrote that piece 11 or 12 years ago. [my emphasis]

Only Hur didn’t call it a 66-word utterance. He called it an 8-word utterance, repeating those bolded eight words 23 times in the report without mention of the 40-page memorandum that Biden mentioned in the same sentence. Only once did he provide the full context.

Biden’s attorneys argued that given that Biden mentioned it in the very same sentence, it’s more likely that Biden was referring to that memo than two folders of documents found in a box in Biden’s garage.

We believe that an accurate recitation of the evidence on this point would recognize the strong likelihood that the President was referring in the recording to his private handwritten letter to President Obama — the one mentioned on this recording immediately after the eight words that you are focused on — rather than the marked classified Afghanistan documents discovered in the Wilmington garage.

There were drafts of the memo — which Biden wrote over Thanksgiving in 2009 in an attempt to dissuade President Obama from surging more troops into Afghanistan — in the box in the garage, but the FBI found the hand-written memo itself stored elsewhere in Biden’s Wilmington home. It too had classified information in it, but Hur treated it like the diaries it was found in, something Biden wrongly treated as a personal document.

Because these documents on Afghanistan were the only thing he had, Hur went to some length to spin a story that might be consistent with Biden finding those documents in a rental house in Virginia in early 2017 and, just weeks after having sent other marked classified documents back to the Naval Observatory, deciding to keep them.

Part of that involved telling two stories, which narratively collapse events from 2017 with the discovery of the documents in question, to provide motive.

Hur’s first attempt suggested that Biden willfully retained these documents to help write his book, Promise Me, Dad, on which he was working with the ghost writer to whom he mentioned classified documents.

MR. BIDEN’S SECOND BOOK, PROMISE ME, DAD, AND THE DISCOVERY OF CLASSIFIED AFGHANISTAN DOCUMENTS

Like many presidents, Mr. Biden has long viewed himself as a historic figure. Elected to the Senate at age twenty-nine, he considered running for president as early as 1980 and did so in 1988, 2008, and 2020. During his thirty-six years in the Senate, Mr. Biden believed he had built a record in both domestic and foreign affairs that made him worthy of the presidency.

In addition to the notebooks and notecards on which he took notes throughout his vice presidency, Mr. Biden collected papers and artifacts related to noteworthy issues and events in his public life. He used these materials to write memoirs published in 2007 and 2017, to document his legacy, and to cite as evidence that he was a man of presidential timber.

Only, that story didn’t work, because Promise Me, Dad wasn’t about Afghanistan, it was about Beau’s death and Biden’s subsequent decision not to run for President in 2016. And while Hur tried to fudge what surely was the result of a classification review, that book had no classified information in it.

Please open the link to finish this excellent exegesis of the Hur report.