Jennifer Rubin is one of my favorite columnists at The Washington Post. She is both a journalist and a lawyer. She cuts to the heart of whatever matter she examines. She was hired to be the conservative commentator on the opinion page; she had Sterling credentials. But Trump pushed her out of the conservative bubble and into the center.

Here she pins the blame for the Hur fiasco where it belongs: on Merrick Garland, who appointed Hur knowing he was a loyal Republican.

She wrote:

Special counsel Robert K. Hur had a single task: determine if President Biden illegally retained sensitive documents after his vice presidency. The answer should not have taken nearly 13 months or a more than 300-page report. Hur also should have avoided trashing “the fundamental ethos of a prosecutor to avoid gratuitous smears,” as former White House ethics czar Norm Eisen told me.

Hur found that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt” and that prosecution was “also unwarranted based on our consideration of the aggravating and mitigating factors.” He seemed to intentionally disguise that conclusion with contradictory and misleading language that “Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” He conceded that was not legally provable. (As Just Security pointed out, the media predictably and widely misreported this: “The press incorrectly and repeatedly blast out that the Hur report found Biden willfully retained classified documents, in other words, that Biden committed a felony; with some in the news media further trumpeting that the Special Counsel decided only as a matter of discretion not to recommend charges.”)

Hur acknowledged that Biden’s cooperation, “including by reporting to the government that the Afghanistan documents were in his Delaware garage,” leaves the impression he made “an innocent mistake, rather than acting willfully — that is, with intent to break the law — as the statute requires.” Moreover, Hur conceded that the documents “could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation.”

The body of the report refutes the element of willfulness — noting a variety of factors (e.g., a good-faith belief the Afghanistan memo was no longer classified, presidents’ practice of taking notes with them). Hur also distinguished Biden’s behavior from four-times-indicted former president Donald Trump:

Several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.

That should have been the end of the matter.
But it was Hur’s gratuitous smear about Biden’s age and memory — most egregiously, his far-fetched allegation that Biden could not recall the date of his son Beau’s death — that transformed a snide report into a political screed. Speculating about how a jury might have perceived the president years after the incidents took place was entirely irrelevant because the lack of evidence meant there would be no case.

Former prosecutors were almost uniformly outraged. Jeffrey Toobin remarked, “It was outrageous that Hur put in some of that stuff in this report. That had no place in it.” He added, “There is no reason this report had to be 300 pages. There is no reason this fairly straightforward case had to be treated this way. … The job of prosecutors is to put up or shut up.”

Former prosecutor Andrew Weissmann called Hur’s jabs “entirely inappropriate.” He tweeted, “Of course, no crime was committed by Biden, but as anticipated, Hur takes the opportunity to make a gratuitous political swipe at Biden. … [Attorney General Merrick] Garland was right to have appointed a Special Counsel but wrong to pick Hur and to think only a Republican could fit the bill.” (Weissmann analogized to former FBI chief James B. Comey, who exonerated Hillary Clinton of crimes but savaged her conduct just days before the 2016 election.)

Likewise, ethics guru Matthew Seligman told me, “What Hur should have written — and all he should have written — is that there is insufficient evidence to prove beyond a reasonable doubt that President Biden’s level of intent rose to the willfulness standard required by the statute.” Eisen argues that Hur violated the Justice Department’s prosecutorial principles. (“Federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged parties,” the rules say.)
Hur is not solely to blame for going beyond his mandate and introducing smears. Garland erred in appointing and giving free rein to a Republican loyalist. He should have anticipated that a rock-ribbed Republican such as Hur would echo GOP campaign smears attacking Biden’s memory and age. Garland’s lousy judgment wound up sullying and politicizing the Justice Department.

As former prosecutor Shan Wu wrote, “It was Garland’s responsibility to ensure that Hur’s report did not stray from proper Justice Department standards. Garland should have known the risks when he picked Hur — who had clerked for conservative Chief Justice William Rehnquist, served as the top aide to Deputy Attorney General Rod J. Rosenstein, who assisted [Attorney General] Bill Barr’s distortion of the Mueller Report, and who was a Trump-appointed U.S. Attorney.” (Hur also clerked for Judge Alex Kozinski, a right-wing icon on the U.S. Court of Appeals for the 9th Circuit who was forced to resign over accusations of decades-long egregious sexual harassment.) Unlike Barr, Garland did not even release a summary to focus on the salient facts. This blunder, coupled with his unconscionable delay in investigating Trump, bolsters criticism that Garland has been the wrong man for the job.

Finally, the media — which made a spectacle of itself hollering at and interrupting Biden in his news conference after the report was released — certainly amplified the GOP talking point. Many outlets failed to explain that there was insufficient evidence of willfulness. For days, headlines focused on the memory smear rather than on Biden’s exoneration. Worse, Sunday news shows misreported the report.

The Biden-Harris campaign decried the media’s obsession with Biden’s age while virtually ignoring another rambling, incoherent Trump speech in which he insisted Pennsylvania would be renamed if he lost. (In South Carolina on Saturday, he was at it again, inviting Russia to invade NATO countries and insulting Nikki Haley’s deployed husband.) By habitually and artificially leveling the playing field, much of the media enables MAGA propaganda and neglects Trump’s obvious mental and emotional infirmities.

Still, facts matter. Biden acted responsibly and committed no crime. Trump faces multiple felony counts, including intentionally withholding top-secret documents and obstructing an investigation. Three years separate Biden and Trump in age, but the distance between their mental and emotional fitness remains incalculable — as is the chasm between the media we have and the media democracy requires.