Archives for the month of: February, 2024

This report was written by Tanisha Pruitt, Ph.D., for Policy Matters Ohio in April 2023. It provides a comprehensive review of the funding of K-12 education in the state. The state has 1.6 million students. The state Constitution says (Article 6, section 2):

The General Assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state; but no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.

The legislature and governor of Ohio apparently believe that the state Constitution does not mean what it says. The Republican leadership has steadily increased the funding of charter schools (which are not “common schools,” but are privately managed schools, some for-profit) and vouchers, which go primarily up religious schools.

The report was written before the legislature lifted income caps on vouchers, agreeing to subsidize the tuition of all students regardless of family income.

Please open the link to see the graphs.

The Policy Matters Ohio report begins:

School is a place where childhood happens. Ohio’s public educators teach children of all races and backgrounds basic skills, but also challenge and inspire them to follow their dreams. For many students, school is a safe place to learn, develop and grow.

Ohio currently educates 1.6 million children attending school in our cities, suburbs and small towns. For years, almost no one was happy about how the state of Ohio funded public schools. The system pitted communities against each other and private and charter schools against public schools. We were living in the K-12 version of the “Hunger Games”: The wealthier your district, the stronger your chances of success.

Most state lawmakers signed off on a system that relied too heavily on local property taxes,[1] so communities where many residents have low incomes struggled to pay for the basics like updated resources and teaching materials. The state capped the funding it sent to some districts, often leaving those districts feeling cheated. In others, state funding failed to keep up with changing costs and student needs. Since 2005, lawmakers have been systematically sending more resources to the wealthiest Ohioans by cutting the state income tax, which accounts for nearly one-third of the state’s spending on schools. Meanwhile, lawmakers have diverted almost $1 billion a year from local levies to private and charter schools.[2]

These policy choices have taken a toll on Ohio’s educational outcomes. Education Week ranks Ohio 46th in the nation for equitable distribution of funding.[3] The performance metrics included: (1) state spending by examining per-pupil expenditures adjusted for regional cost differences, the percent of students in districts with per-pupil spending at or above the national average, spending index, and percent of total taxable resources spent on education and (2) Equity, by examining the degree to which education funding is equitably distributed across the districts within the state.[4]

The pandemic has contributed to a decline in test scores, which could have an impact on our overall ranking, if we do not get students caught up.[5] Over nearly two decades, we can draw a straight line between the racial and economic achievement gaps and the lack of funding to provide Black, brown, economically disadvantaged students[6] and students with disabilities what they need to succeed in school.

Ohio’s schools are becoming more racially and ethnically diverse; the Hispanic[7]population (a close proxy for Latinx) alone has more than doubled over the last 10 years.[8] Student poverty is also on the rise with 51% of students considered economically disadvantaged and the homeless student population doubling over the last decade.[9]

COVID-19 created unstable and even chaotic learning environments across Ohio. The elevated stress and social isolation caused by the move to virtual learning[10]exacerbated students’ need for mental health services.[11] The pandemic continues to take a toll on educators as well. COVID and other outbreaks are making educators sick. Moreover, increased stress and low pay cause many educators to leave the profession. Districts across the state have grappled with unprecedented staff shortages. For example, Columbus City Schools (CCS) had 800 employees absent every day during the height of the pandemic.[12] Hamilton City School officials were forced to cancel classes when 170 staff members were out due to illness.[13]

COVID has especially hammered school districts in communities that can’t raise enough money through local property taxes — especially in big cities, where Black, brown and economically disadvantaged students are more likely to live.[14] Schools in these communities often have fewer resources for COVID mitigation efforts like improving ventilation.[15]

Long before COVID, many policymakers neglected public schools, siphoning away their funding for tax giveaways[16] to corporations and undercutting them with schemes that send public money to charters and private schools. Combined with the effects of COVID, Ohio’s legacy of inadequate and inequitable funding has weakened the role school plays as a foundational public service for families and communities. For our state to be a vibrant place where people want to live, we need fully and fairly funded schools in all districts, no matter what students look like, or how much money their families have.

This report describes how the state funds public K-12 education and some key investments proposed in the 2024-25 Executive Budget, the legacy of unconstitutional funding, the role private school vouchers play in harming public schools, and how the Fair School Funding Plan — when fully funded and fully implemented, including weights and cost corrections — can provide districts with more resources to prepare Ohio’s children to succeed.

A brief history of Ohio school funding

The framers of Ohio’s constitution obligated the state to provide a “thorough and efficient system of common schools” for all students.[17] In 1991, the Ohio Coalition for Equity & Adequacy of School Funding, representing more than 500 school districts in Ohio, filed suit in the Perry County courts against the State of Ohio for failing to uphold this constitutional requirement.[18] In DeRolph vs. The State of Ohio — named for Perry County school district student Nathan DeRolph — plaintiffs argued the state was failing to live up to its obligation due to over-reliance on local property taxes for school funding: In wealthy communities, high property values generated revenues needed to provide students with more resources for cutting-edge technology, advanced classes, and extracurricular activities; the opposite was true in poor communities. This left schools in cities, rural areas and many low-income communities severely under-resourced, significantly harming outcomes for their students.

The litigation dragged on until 1994 when Perry County Court Judge Linton Lewis, Jr. ruled that “public education is a fundamental right in the state of Ohio” and that the state legislature must provide a better and more equitable means of financing education.

The DeRolph case was the start of a foundational shift in the school funding system in Ohio, but the fight for constitutional and equitable funding continued for decades following the ruling. By failing to keep up with inflation and by diverting public funds to charter schools[19] and vouchers (i.e., scholarships to private schools), lawmakers in fact cut state aid to traditional public schools over time.[20] As a result, public schools have increasingly relied even more on local resources, which exacerbates the problem of unequal funding and quality across districts,[21] a problem that persists today….

Public dollars, private benefits

Two smaller education systems run alongside Ohio’s traditional public schools: charters and private schools. When legislators redirect funding from traditional public schools to pay for charters and vouchers (which pass public dollars through parents and into private schools), the vast majority of Ohio students who attend traditional public schools have to make do with less.

In Ohio charter schools have been branded “community schools” and are considered “public” because they cannot charge tuition and they are supposed to accept all students. However, charter schools do not necessarily serve the public good. Charter school sponsors may contract with for-profit companies to operate the schools. In 2020, Ohio had 313 charter schools serving 102,645 students and 178 (57%) of them were operated by for-profit entities.[48]These “operators” have been the source of much scandal in Ohio. Simply put: The charter system in Ohio has lots of loopholes for private, profit-seeking companies to siphon off public dollars.

In FY 2022 the state sent $1.45 billion to charter schools — up from nearly $620 million in 2007.[49] During that time, Ohio’s legislators earned our state a reputation as “the wild west of charter schools” by failing to hold charters and their operators accountable.[50] Problems with Ohio’s charter school system came to a head with the ECOT scandal: A for-profit online charter school, the Electronic Classroom of Tomorrow squandered millions in public money by inflating enrollment numbers.[51] Other charter scandals have prompted rounds of legislative reform to reduce self-dealing, prevent the state from paying for students who were not actually attending school, and stop attempts at double-dipping by selling state-purchased materials back to the state for even more public dollars.[52]

The Ohio Charter School Accountability Project, a joint effort of the Ohio Education Association (OEA) and Innovation Ohio, using data primarily from the Ohio Department of Education (ODE), created a tool to help Ohioans know the state of publicly funded charters and private schools that accept public vouchers, and how they compare to traditional school districts. Analysis includes state report card rankings, classroom expenditures, and state aid deductions to charter schools. This system is intended to provide transparency so that parents, teachers, students and advocates can hold charter schools accountable.[53]

Based on the recent Annual Community Schools report conducted by the Ohio Department of Education (ODE),[54]community schools in Ohio are receiving more funding through the Quality Community School Support Grant (QCSS). Eligibility requirements for these grants are based on performance standards and overall academic achievement. In the current budget lawmakers increased funding to QCSS to $54 million for FY 2022, a $24 million increase from 2021. This increase includes a per-pupil increase of $1,750 for economically disadvantaged students and a $1,000 per-pupil increase for all other students.[55]

Vouchers eat up state funding for K-12 schools

As problematic as under-regulated charter schools can be, the proliferation of private school vouchers has had the most serious consequences for public schools and the vast majority of Ohio students who attend them. Since the Cleveland Voucher Program for low-income students in Cleveland City Schools launched in 1996, policymakers have expanded voucher programs across the state. Ohio currently has four main school voucher programs: the Educational Choice (EdChoice) Scholarship Program, the Cleveland Scholarship and Tutoring Program (CSTP), the Autism Scholarship Program, and the Jon Peterson Special Needs (JPSN) Scholarship Program. The EdChoice program is split into two types: the Traditional EdChoice Scholarship, also known as performance-based EdChoice, and the EdChoice Expansion Scholarship, also known as income-based EdChoice.

Policymakers introduced the Traditional EdChoice scholarship program in 2005 and continue to expand it. The EdChoice Expansion program was introduced in 2014 and has also expanded in scope. The performance-based EdChoice program is available to students in underperforming school districts, while the income-based EdChoice program is available to low-income students. The Cleveland Scholarship is for all K-12 students in the Cleveland Metropolitan School District. The other two scholarships, Autism and JPSN, are for autistic students and students with any disability, respectively.

What started as a program to provide alternative education options for students in what the state perceived to be underachieving schools has now expanded to include students from public schools with high achievement grades. According to a brief by the Northwest Local School District, 47.7% of the buildings on the current list of Ohio schools eligible for vouchers have overall grades of “A,” “B,” or “C” under the state’s report card system. The number of eligible schools has also grown rapidly. During the 2018-19 school year Ohio had fewer than 300 school buildings that were considered eligible; by 2020-21, 1,200 school buildings were eligible: a 300% increase in just two years.[56] Similarly, income-based vouchers are now being proposed for families earning up to 400% of the federal poverty level. This expansion would be a costly and needless expansion, subsidizing private education for families that need no help. A family of four could earn up to $120,000 and be considered income eligible. This expansion will make vouchers nearly universal, by providing an additional handout to upper-middle-class families at the expense of public schools.

Vouchers in the state budget

After years of tax cuts for the wealthy and corporations that have drained resources from public schools, and as COVID has created new pressures, the state further undercuts public schools by pumping hundreds of millions of public dollars into private schools.[57]

The 2022-23 biennial budget expanded funding of private schools, especially through EdChoice and other voucher programs. Traditional, performance-based EdChoice received $212.5 million, and the income-based EdChoice Expansion program received close to $103 million, a combined 61.4% of voucher payments statewide in FY 2022. The Autism and JPSN scholarships received $116.5 million and $76.6 million, respectively, making up 17% and 12.4% of distributed scholarship funds. The Cleveland Scholarship program received $46 million and only makes up 9.1% of distributed scholarship funds.[58]

Legislators have increased voucher payments from state funds since 2014, as illustrated in Figure 6.[59]

Figure 6
https://datawrapper.dwcdn.net/7sKMh/2/

The FSFP funds vouchers directly instead of allowing them siphon away districts’ state funding. Lawmakers increased total voucher allocations from $395.4 million in FY 2020 to $635.1 million in FY 2022.[60]They also increased direct state aid to private schools, though not as dramatically. Policymakers increased funding for “auxiliary services” to private schools from $149.9 million in FY 2021 to $154.1 in FY 2022 and just under $156 million in FY 2023. Meanwhile, “nonpublic administrative cost reimbursement” aid — which reimburses charter schools for the cost of mandated administrative and clerical activities such as preparation, filing and records keeping[61] — increased from $68.9 in FY 2021 to $70.8 in FY 2022 and $71.6 in FY 2023.[62]

Lawmakers have increased spending on vouchers by increasing the amount families can receive. For income-based EdChoice Expansion vouchers for FY 2022-23 the state now awards qualifying K-8 students $5,500 per year and high school students $7,500 per year for tuition at non-public schools, up from previous award amounts in FY 2020-21 which provided $4,650 for K-8 students and $6,000 for students grades 9-12.[63]….

Voucher expansion threatens our public schools

Because of the General Assembly’s continued expansion of voucher programs, more Ohio families are enrolling in them — up from 52,000 in 2019 to 69,991 in 2021. Even accounting for this growth, most voucher students were already attending private school before receiving vouchers.[64] Further, the number of vouchers is a fraction of the number of students served in public schools. When students use state-funded vouchers to attend private schools, even if they were never enrolled in traditional school districts, it means less money in the state budget that could otherwise be spent creating great public schools, which must serve all students.

The Ohio Coalition for Equity and Adequacy of School Funding, a coalition of over 100 school district and 20 education and community groups, took the state of Ohio to court, claiming that EdChoice Expansion violates the constitutional requirement that the state provide a “thorough and efficient system of common schools.” Coalition advocates believe that state lawmakers’ growing investment in vouchers could lead to a school funding system that privileges private education even more in years to come.[65]

Many proponents of voucher expansion have painted it as the state simply supporting parents’ right to choose where their child will be educated, but choice is not the problem, priorities are. The state has not fulfilled its constitutionally mandated responsibility to fairly fund public schools. Key components of the FSFP are still outstanding. Allocating close to $1 billion in public funds for students to take vouchers to private schools is a huge disservice to the 90% of students who attend our public schools.

Ultimately, the way the executive budget proposes to distribute foundation aid over FY 2024-25 will further erode the share going to traditional public schools by allocating a greater share to charters. The proposed budget would send 77.9% of foundation funds to traditional schools, compared to 79.1% in the last budget. Charters would take 10.8%, up from 9.9%. Voucher programs stay at 7.1%, and joint vocational school districts increase to 4.2% from 3.8%.

Recommendations & conclusion

Ohio has underfunded public schools and other essential public services for years.[66] Ohio lawmakers have cut state income taxes since 2005, reducing our ability to provide an equitable education system for all our students, and giving huge windfalls to the wealthiest Ohioans and little or no benefit to people with middle or low incomes.

Policymakers have a constitutional duty to protect public schools. Ensuring a thorough and efficient system of common schools means correcting disparities generated from over-reliance on property taxes by fully implementing the FSFP, with accurate estimates of how much it really costs to educate our kids.

Lawmakers in Ohio need to invest in developing an educator workforce of qualified teachers who are paid fairly for their essential work and strongly supported while doing it. Other pressing issues include a bussing crisis,[67] fewer 5-year-olds prepared for kindergarten,[68]lowered reading and math proficiency scores,[69] chronic absenteeism,[70] and a persistent digital divide.[71]

The state has sufficient revenue to meet these challenges, so long as legislators make public schools and kids a priority. Ohio has the money to fully commit to the FSFP in this budget. Instead of phasing in funding piece by piece, year after year, lawmakers should fully fund it right now. Ohioans must come together to demand lawmakers live up to the promise of the FSFP in the next biennium and beyond.

Categories Accountability, Budget Cuts, Charter Schools, Corruption, Disruption, Education Industry, Elections, Funding, Ohio, Privatization, Religion, School Choice, Separation of church and state, Vouchers

Ohio: After GOP Lifts Income Caps on Vouchers, Enrollments and Costs Soar

By dianeravitch

February 12, 2024 //

Republicans in the Ohio legislature love vouchers. They don’t love public schools. First, they created vouchers for Cleveland in 1995 as part of a budget bill. The ACLU challenged the program, and the Supreme Court upheld it in a 5-4 decision called Zelman Vs. Simmons-Harris.

Here is a summary at Case Western Reserve University’s website:

On June 27, 2002, the court ruled 5-4 in favor of vouchers, with Justices Sandra Day OConnor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas joining Chief Justice William Rehnquist in delivering the majority opinion. Rehnquist argued that the program is “entirely neutral with respect to religion.” He explained, “It permits genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.” Justice David H. Souter offered a harsh dissent, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. Souter called the ruling “potentially tragic” as a “major devaluation of the establishment clause.”

Souter was right. Cleveland has had its voucher program in place since 1996. Almost 30 years later, it’s clear that it did not improve academic achievement. Cleveland has participated in the NAEP testing since 2003. It is one of the nation’s lowest scoring urban districts, outperforming only Detroit (a city with many charter schools). Vouchers didn’t make education better in Cleveland and may have made it worse by reducing civic investment in the public schools.

Lots of choices—public, charter, and vouchers—no improvements.

Despite the clear evidence of failure in Cleveland, the Ohio legislature created multiple statewide voucher programs. Initially, they were targeted towards specific high-needs groups, including low-income children.

Now, however, the legislature has raised the income cap again. Students are eligible if their family income is 450% of the federal poverty level.. Enrollment more than tripled, from 24,000 to 82,000, and costs are ballooning. But that won’t slow down the rush to universal vouchers, where the state gives a voucher to every student regardless of family income.

The only statewide evaluation of Ohio vouchers was released in 2016. It was sponsored by the Thomas B. Fordham Institute, a rightwing think tank that supports school choice The findings were negative. Vouchers depressed achievement. But no one cared.

Laura Hancock at Cleveland.com reported:

COLUMBUS, Ohio – The number of applications for Ohio-funded scholarships for private schools has more than tripled this school year over the last after the state legislature increased both the cash amount of the vouchers and family income eligibility, according to new figures.

So far, the state has paid out $166.9 million for private school tuition this year in one of the voucher programs that the legislature expanded.

But that amount will continue to rise. Most private schools collect tuition on a monthly basis, and not all applications to the program have been granted or even submitted. Parents have until the end of the June to submit voucher applications…

According to the latest figures from the Ohio Department of Education and Workforce, the state’s new K-12 agency:

– Thus far in the 2023-2024 school year, 82,610 students have been awarded scholarships to private schools in the one of the five voucher programs that the legislature expanded. In the 2022-2023 school year, families of 24,320 kids received vouchers.

-An additional 8,582 applications had been received as of Jan. 25 but were in need of a correction or were otherwise incomplete.

DEW has changed the way it’s reporting the dollar amount, as reporters have published dozens of stories about the controversial growth in private school vouchers this year. Previously, it reported how much money the state had committed to private school vouchers in the 2023-2024 school year, based on approved student applications.

For instance, in late October, it had committed $239.8 million for 41,120 students whose applications had been approved at the time. That figure raised eyebrows because it suggested the state could go well over the $397.8 million the General Assembly had budgeted for vouchers this school year.

Since then, the number of applications approved has more than doubled, but the state agency is reporting only how much it has paid out rather than its total commitments to date. Calculating that number is difficult without detailed data because the state awards scholarships based on a sliding income scale.

That means the state spend reported now is about $73 million lower than what the state said in October. However, by the end of June, the amount of state money spent is almost guaranteed to be higher.

In the two-year state budget bill passed over the summer, lawmakers expanded voucher eligibility to all families. Among the changes:

-The General Assembly raised the full voucher award from $5,500 to $6,165 this school year for students in K-8 and from $7,500 to $8,407 in 9-12.

-For the full voucher, lawmakers expanded family income eligibility to 450% of the federal poverty level, or $135,000 for a family of four, from the previous 250% of the federal poverty level, or $75,000 for a family of four.

-Lawmakers removed income caps for all families this year, meaning high-income families also can receive scholarships, but the award decreases the wealthier a family is. For instance, families at 451% to 500% of the poverty level are eligible for $5,200 for K-8 and $7,050 for 9-12.

The state has five private school voucher programs. Some are for children with special needs or for families who live in the boundaries of the Cleveland Metropolitan School District. The program with explosive growth this year is Education Choice, which is based on income eligibility. (That is different from an EdChoice program for families who live in the boundaries of low-performing public schools.)

So far this school year, 146,544 Ohio students are receiving a scholarship for one of the five voucher programs, costing the state $428.5 million to date.

A Wednesday report about Ohio’s private school vouchers by ProPublica found that parents with kids in private schools were being pressured to apply for vouchers, even if they were against it on principle. Schools pressured lower-income parents to obtain the scholarships first before asking for financial aid. Some schools appeared prepare to raise tuition, because the increase could be absorbed by parents, now that the state was paying a large chunk of their tuition, the reporting found.

What is more, Ohio’s voucher program enables the revival of discrimination that federal law forbids.

Journalist Marylou Johanek writes:

Public financing of parochial school prejudice is the law in Ohio. Take a minute to process, I’ll wait. The state has opened its coffers to Catholic schools that discriminate. The overwhelming amount of Ohio’s voucher money — free taxpayer money to offset private and religious school tuition — goes to Catholic schools.

The Catholic Diocese of Cleveland receives a ton of voucher funding. It just announced a new anti-LGBTQ+ policy in its 84 private religious schools that is blatantly discriminatory. Your tax dollars at work. Against the LGBTQ+ community. Against highly vulnerable LGBTQ+ youth.

Turns out the Church’s “all are welcome” spin is a conditional precept based on strict adherence to unchristian bigotry. Church leaders in Cleveland put their flock on notice that the universal invitation of acceptance may be rescinded to those who “openly express disagreement with Church teaching on matters of sex, sexuality, and/or gender in an inappropriate or scandalous way.”

The way Jesus turned nonconformists away.

From here on out, Catholic policy in Cleveland elementary and high schools — that rake in millions in taxpayer-funded vouchers — states that every person is expected “to present and conduct themselves in a manner consistent with their God-given biological sex” or face disciplinary action. Apparently, inclusive, affirming, nonjudgmental love is overrated.

The Catholic Diocese of Cleveland aligned itself with “culture war” extremists attacking people who can’t fight back. When an institution as influential as the Cleveland diocese rolled out sweeping prohibitions on LGBTQ+ expression and support in its diocesan-run and parish schools, it effectively blessed the record wave of hateful anti-LGBTQ+ bills being introduced by right-wing politicians in Ohio and Republican statehouses across the country (500 and counting).

Open the link and read it.

Categories Education Industry, Elections, Funding, Ohio, Privatization, Religion, Separation of church and state, Vouchers

Yong Zhao: Why Doesn’t the U.S. Scrap PISA?

By dianeravitch

February 12, 2024 //

When I learned that the latest PISA (Program on International Student Assessment had been released, I attended a webinar, where I learned once again that the scores of U.S. 15-year-old students were somewhat below the international average. The PISA tests in math, reading, and science have been offered since 2000, sponsored by the Organization for Economic Co-operation and Development.

My takeaway from the webinar was that we should try to be more like Singapore and Macau.

I have studied the results of international assessments such as PISA and TIMSS for years. Eventually, I began to wonder what the connection was—if any—between the test scores of 15-year-old students and the economic productivity of their nation 10, 15, 20 years later. We’ve been bemoaning our scores since the first international tests were given in the 1960s, even as our economy soars way beyond the nations with higher scores on the tests.

I invited Yong Zhao to share his reaction to the latest PISA scores. His response was as brilliant as I anticipated.

Yong Zhao is one our most accomplished scholars of education. Born in China to an impoverished family, he pursued his dreams, migrated to the United States, and has made his mark as a creative and innovative thinker. He is currently a Foundation Distinguished Professor of Education at the University of Kansas and holds an appointment as Professor of Educational Leadership at the University of Melbourne. His list of honors and publications is too long for me to recite here. But you can find it online.

Yong Zhao wrote:

It doesn’t make sense: Why Is the US Still Taking the PISA?

I have always wondered what America has got from participating the PISA every three years. Since 2000, the U.S. has been taking part in this nonsensical global academic horse race. Every time it took the test, American students stood at about the middle of the global league table. Every time the results were released, American media would point out how American students are not the best, but East Asian education systems such as China, Hong Kong, Chinese Taipei, South Korea, Japan, and Singapore are the best. And then U.S. authorities would invite PISA and other pundits to tell us how to improve American education.

The same story has been going on for more than two decades, but American education has not improved, at least according to the PISA scores. According to the most recent results (NCES, 2023), American students did much worse in math in 2022 than in 2003, with an 18-point decline from 483 to 465. Their reading and science scores, however, remained about the same without significant change over the past two decades. Although PISA experts largely blame the COVID pandemic as the reason for the decline in math, it does not make much sense because there is no decline in reading and science. Did COVID-19 only affect math, not science and reading? Of course, one can try to argue that reading and science are much less sensitive to COVID, but why?

Basically, the international standing of the US and the test scores of its students have not changed much. Whatever the PISA data revealed and/or the lessons from other countries such as China, Japan, Singapore, or Finland have not helped improve America’s PISA scores. By the way, Finland, the country Americans view with the best education system because of its early stunning PISA performance, has seen a much more dramatic decline in its PISA scores: from 544 to 484—a 60-point decline in math, from 546 to 490—a 56-point decline in reading, and from 563 to 511—a 52-point decline over the past two decades. Not sure if America still views Finland as the best education country, but its scores have dropped to almost the same point as American students.

In fact, other than Finland, the PISA league tables have not changed much either. East Asian education systems have consistently remained the top performers and the OECD countries’ average scores have been dropping. If PISA had any impact on the world’s education quality and equity, education should not be the same as 20 years ago.

PISA does not really have much to offer to anyone, except those who benefit from the test itself—the consultants, the test makers, the data processors, and possibly some education politicians.

In a review article (Zhao, 2020), I summarized the research about PISA and found: 1) PISA markets itself as an assessment of abilities needed in the 21st Century, but it is the same as other international tests such as TIMSS, 2) PISA ignores the overall educational purposes of different countries by primarily assessing math, reading, and science, 3) PISA’s tests are not of high quality with numerous theoretical and technical problems, and 4) PISA’s sampling has been manipulated in different countries. My conclusion is that instead of bringing positive changes to the world, PISA wreaked havoc.

America has never excelled in international tests since the beginning of such assessment in the 1960s, but the low scores have not seemed to affect it much. In fact, a correlational analysis done in 2007 showed a negative correlation between international test scores and economic development (Baker, 2007). That is, countries with higher scores in the first international study did worse than countries with lower scores. If PISA or any other international tests truly measure what matters in education, America should no longer be a developed country. On the contrary, East Asian countries have always scored well in international assessments, but their economic development has been more related to economic, political, and international orders than their test scores.

What matters to economic development and prosperity is perhaps the non-cognitive factors that PISA does not typically emphasize. For example, in an analysis, I found that PISA scores are negatively correlated with entrepreneurship confidence across countries (Zhao, 2012b). American students, despite their lower scores, have always had more confidence than their peers in other countries. In fact, confidence has been found to have negative correlations with test scores (Zhao, 2012b, 2014, 2018b). High score education systems, except Finland, have always had a negative impact on students’ social and emotional wellbeing (Zhao, 2012a). Even PISA’s own data show that PISA scores are negatively correlated with life satisfaction of students (OECD, 2019).

Many education systems participate in PISA because they are fooled by its claim to measure global competitiveness. Somehow these educational systems are convinced that their PISA scores and rankings mean how competitive they are globally. But this is not true and cannot be true. In 2022, over 80 education systems took part in the PISA but these systems are hugely different. For example, the U.S. has three hundred million people and does not really have an education system (it has over 50 education systems based on the number of states and over 12,000 systems if we treat each school district as a system). How can it be compared with Macao, China, a tiny place with about 688,000 people and one education system? Likewise, how can the U.S., with a per capita GDP of over $70,000 be compared with Albania, whose per capita GDP is about $6,000.

Moreover, PISA has been operational for over 20 years. The first cohort of 15-year-old students took the test in 2000. If PISA truly has predictive power, it should have produced a longitudinal study to show how these students do in society. They are about 39 years old today. But we haven’t seen any such report except the wild guesses made by some scholars (Hanushek & Woessmann, 2010).

If PISA offers nothing, why does the U.S. spend the money and effort to join the game? For monitoring of basic education conditions, it already has the National Assessment of Education Progress (NAEP) or the national report card, which has been in existence since 1969. Why continue to participate in PISA?

Frankly, it’s inexplicable, for there is truly no reason the U.S. should continue to participate in PISA, let alone to pretend to learn from high performing countries. The lessons PISA offered have not been productive. For example, the lesson that high performing systems (e.g., Singapore, South Korea, and Finland) recruit high performing high school graduates to be teachers (Barber & Mourshed, 2007) is not based on real evidence and does not really produce better education outcomes (Gronqvist & Vlachos, 2008). The lesson that high performing systems have clear definitions of learning expectations, a good structure of different stages, and tough measures to ensure that students have met the expectations (Tucker, 2011) is intended largely to copy East Asian education systems; but, ironically, the East Asian countries have been working very hard to change these practices (Zhao, 2014). International learning may make sense sometimes, but there are great limitations (Zhao, 2018a). American education should focus on developing its own way to improve education instead of trying to catch up with others (Zhao, 2009).

This is not to say that American education is perfect. Rather, it is to say the way forward is not to look at what others have been doing. The U.S. needs to solve its own problems and work on creating a better future. With the emergence of ChatGPT and other generative AI tools, the world has changed again. If ChatGPT had taken the 2022 PISA, it is highly likely that it would outscore all the students in the world. It would be the best education system accordingly. Today, many students use AI tools to do their schoolwork, and teachers use AI in their teaching. PISA has become even more irrelevant.

Since 2000, our scores on PISA have barely changed. While there’s much chatter about learning from other systems, it has not happened. There is no reason that the U.S. should continue its participation in PISA.

References:

Baker, K. (2007). Are International Tests Worth Anything? Phi Delta Kappan, 89(2), 101-104.

Barber, M., & Mourshed, M. (2007). How the World’s Best-Performing School Systems Come out on Top. Retrieved from New York: https://www.mckinsey.com/industries/social-sector/our-insights/how-the-worlds-best-performing-school-systems-come-out-on-top

Gronqvist, E., & Vlachos, J. (2008). One size fits all? The effects of teacher cognitive and non-cognitive abilities on student achievement. Retrieved from Stockholm, Sweden: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1311222

Hanushek, E. A., & Woessmann, L. (2010). The High Cost of Low Educational Performance: The Long-run Economic Impact of Improving PISA Outcomes. Retrieved from Paris: http://books.google.com/books?id=k7AGPo0NvfYC&pg=PA33&lpg=PA33&dq=hanushek+pisa+gdp&source=bl&ots=2gCfzF-f1_&sig=wwe0XLL5EblVWK9e7RJfb5MyhIU&hl=en&sa=X&ei=MLPCUqaOD8-JogS6v4C4Bw&ved=0CGcQ6AEwBjgK#v=onepage&q=hanushek%20pisa%20gdp&f=false

NCES. (2023). Program for International Student Assessment (PISA). Retrieved from https://nces.ed.gov/surveys/pisa/index.asp

OECD. (2019). PISA 2018 Results (Volume III): What School Life Means for Students’ Lives. Retrieved from https://doi.org/10.1787/acd78851-en.

Tucker, M. (Ed.) (2011). Surpassing Shanghai: An Agenda for American Education Built on the World’s Leading Systems. Boston: Harvard Education Press.

Zhao, Y. (2009). Catching Up or Leading the Way: American Education in the Age of Globalization. Alexandria, VA: ASCD.

Zhao, Y. (2012a, December 11). Numbers Can Lie: What TIMSS and PISA Truly Tell Us, if Anything? Retrieved from http://zhaolearning.com/2012/12/11/numbers-can-lie-what-timss-and-pisa-truly-tell-us-if-anything/

Zhao, Y. (2012b). World Class Learners: Educating Creative and Entrepreneurial Students. Thousand Oaks, CA: Corwin.

Zhao, Y. (2014). Who’s Afraid of the Big Bad Dragon: Why China has the Best (and Worst) Education System in the World. San Francisco: Jossey-Bass.

Zhao, Y. (2018a). Shifting the Education Paradigm: Why International Borrowing Is No Longer Sufficient for Improving Education in China. ECNU Review of Education, 1(1), 76-106.

Zhao, Y. (2018b). What Works May Hurt: Side Effects in Education. New York: Teachers College Press.

Zhao, Y. (2020). Two decades of havoc: A synthesis of criticism against PISA. Journal of Educational Change, 1-22. doi:10.1007/s10833-019-09367-x

Categories Accountability, Education Industry, International, Standardized Testing

Robert Hubbell: Trump is Unfit to be President

By dianeravitch

February 12, 2024 //

Read Robert Hubbell on the latest news. Always a voice of reason. It arrived at 2:17 am, when I was sleeping. I will have to remember his last lines the next time some Trump partisan accuses me of being “hyper partisan.” I am not at all partisan. I fear Trump. He is vicious, ignorant, dangerous. He lies the way other people exhale. Constantly. He inspired a coup attempt once. He would do it again. He faces 91 criminal counts for his actions. Why should anyone vote for this corrupt man? As I wrote yesterday, I would vote for an artichoke—or my dog Mitzi—if that was the choice. I am not blindly loyal to the Democratic Party or to Biden. I am terrified of the return of this unhinged demagogue.

Hubbell wrote:

As the media continues its journalistic rapture over special counsel Robert Hur’s hit job on Joe Biden, Trump gave the “green light” for Putin to attack NATO if Trump is elected in 2024. Don’t hold your breath waiting for the NYTimes to run five front-page stories on Trump’s reckless statement. I will return to the coverage of Robert Hur’s report in a moment, but the more important story (by far) is Trump’s dangerous invitation to Putin to invade NATO allies.

First, a reminder about our forward-leaning stance. As I said, on Friday, we must go on offense. Joe Biden is the better candidate by orders of magnitude. The choice has never been clearer in the history of our nation. We need to be aggressive in making that point. Trump’s statement over the weekend reinforces the binary choice between democracy and tyranny, sanity and chaos, and decency and depravity.

Trump claims he told NATO ally he would welcome Russian attack.

What happened.

At a rally over the weekend, Trump recounted the following conversation with a leader of a NATO ally:

One of the presidents of a big country stood up and said, ‘Well, sir, if we don’t pay, and we’re attacked by Russia, will you protect us?’

You didn’t pay? You’re delinquent? No, I would not protect you. In fact, I would encourage them [Russia] to do whatever the hell they want.

Why it matters.

It matters for three reasons, at least.

First, The story is a fabrication. Trump is a liar (as we know). No president of a “big country” posed the question to Trump, “Well, sir, if we don’t pay . . . .” If Trump had been asked such a question and given the response he recounted during a NATO meeting, we would have heard about it long before a campaign rally in South Carolina in 2024. (Moreover, NATO countries don’t “pay” anyone for membership in NATO. Trump thinks NATO has dues like a country club. It doesn’t. Instead, each member nation agrees to spend a certain percentage of its budget on its own military.)

Second, even though the story is not true as recounted, it is a signal to Putin that Trump’s commitment to NATO is illusory. Trump’s submissive posture regarding Russia threatens international security—and endangers the lives of Americans who will respond to a Russian attack on NATO.

Indeed, NATO chief Jens Stoltenberg made that point, saying,

Any suggestion that allies will not defend each other undermines all of our security, including that of the US, and puts American and European soldiers at increased risk. I expect that regardless of who wins the presidential election, the US will remain a strong and committed NATO ally.

Third, the statement is a reminder of Trump’s wild unpredictability when making public comments. He is a reckless madman. He is unfit to be president.

The reaction.

Trump’s imaginary (but reckless) story was rightly condemned by most major media. The NYTimes led with three front-page stories about the Trump’s statement.

Favoring Foes Over Friends, Trump Threatens to Upend International Order.
An Outburst by Trump on NATO May Push Europe to Go It Alone
Trump draws fire for his comments on NATO and Russia

The Washington Post led with a top-of-page headline, “Trump’s NATO-bashing comments rile allies, rekindle European fears.”

The Wall Street Journal included a below-the-fold front page headline, NATO Leader Blasts Trump’s Suggestion He Would Encourage Russian Invasion of U.S. Allies.

But, as expected, leading Republicans excused Trump’s reckless statement. Senator Marco Rubio said,

He doesn’t talk like a traditional politician, and we’ve already been through this. You would think people would’ve figured it out by now.

The excuse that “he doesn’t talk like a politician” doesn’t change how our NATO allies feel about Trump’s invitation to Putin to invade NATO countries. They would rightly make strategic decisions based on what Trump says without discounting his statement by his unpredictability.

More to the point, Trump doesn’t “talk” like an adult. He speaks like a petulant child with no emotional control. He is unfit to be president.

Speaking of Trump talking like a petulant child, read on!

Trump mocks Nikki Haley’s husband, who is deployed with the National Guard in Africa.

During the same speech in South Carolina, Trump insulted Nikki Haley’s husband, Michael Haley, who is a Major in the National Guard. His unit is currently on a year-long deployment in the Horn of Africa. Trump said,

What happened to her husband? Where is he? He’s gone. He knew. He knew.

Trump’s comment suggested that Major Michael Haley was out of the country to avoid seeing Nikki Haley’s loss in the Republican South Carolina primary. Of course, Trump’s mocking of Major Haley’s service is an insult to all Americans who serve their country in the military.

Nikki Haley condemned Trump’s remarks, saying,

Michael is deployed serving our country, something you know nothing about. Someone who continually disrespects the sacrifices of military families has no business being commander in chief.

President Biden also condemned Trump’s comments:

The answer is that Major Haley is abroad, serving his country right now. We know [Trump] thinks our troops are ‘suckers,’ but this guy wouldn’t know service to his country if it slapped him in the face.”

Of course—on cue—Senator Marco Rubio declined to criticize Trump’s comments about Major Haley’s year-long deployment to Africa.

Every time Trump speaks at a campaign rally, he creates this type of controversy. While his committed base and paid apologists are not moved, some voters will be. Military families, active-duty personnel, and veterans will understand the sacrifice that Major Haley is making—and Trump is mocking….

I am confident that the Biden campaign will get past the special counsel’s slander. Why? Because as the candidates make hundreds of campaign appearances, Biden’s mental fitness will compare favorably to Trump’s. Moreover, as the South Carolina rally on Saturday demonstrated, Trump will make outrageous statements every time he speaks. He will continue to do so—and will become more extreme as the campaign wears on. Joe Biden’s campaign operation is hammering Trump daily—and it is setting Trump’s fragile ego aflame.

Meanwhile, we must keep the faith. Hur’s report has shaken some readers. I received about a dozen “I give up emails” over the weekend. While I understand feelings of anxiety, we can’t give up or collapse in defeatism. Instead, we must take a cue from Republicans: They suffer body blows each week inflicted by the bizarre behavior of the most corrupt and dangerous candidate in our nation’s history, but they continue their support for him unabated.

We are in a significantly stronger position with a good and decent man who has been a successful president. Surely, Joe Biden deserves the same fierce loyalty Republicans give to Trump.

Finally, to be blunt, this fight isn’t about Joe Biden. Today, a reader sent an email criticizing me for showing “unmitigated support” for Joe Biden. I told him that he was mistaken. I am showing unqualified support for democracy.

At this moment in our history, supporting democracy means doing absolutely everything we can to re-elect Joe Biden. His gaffes and mistakes and age matter not a whit. He is a surrogate for democracy. If you aren’t supporting Joe Biden with every ounce of will you can muster, you are failing our democracy in its hour of need. It’s that simple.

Categories Accountability, Character, Democracy, Elections, Trump

Politico: Trump Says He Won’t Defend NATO Ally if It Hasn’t Paid Its Dues

By dianeravitch

February 11, 2024 //

Politico summed up the reactions to Trump’s shocking statement that if he is President again, he will not come to the defense of another NATO nation if it hasn’t paid its dues. Section 5 of the North Atlantic Treaty states that every NATO member will come to the defense of any other NATO member that is attacked.

The only nation that threatens NATO nations is Russia. Trump is sending Putin an invitation to take what he wants.

At a rally in South Carolina on Saturday night, Trump recounted a conversation with an unnamed head of state about how he would respond if a NATO member who had not paid enough money for its defense was attacked by Russia. “One of the presidents of a big country stood up and said, ‘Well, sir, if we don’t pay, and we’re attacked by Russia, will you protect us?’” Trump said.

“‘You didn’t pay? You’re delinquent?’” Trump recounted responding. ‘“No, I would not protect you. In fact, I would encourage them to do whatever the hell they want. You gotta pay. You gotta pay your bills.’”

Rep. Adam Schiff (D-Calif.) slammed the remarks Saturday night in a post on X.

“Trump bragged that he’d encourage Russia to ‘do whatever the hell they want’ to our NATO allies if they didn’t spend enough on defense,” Schiff wrote. “He’s more interested in aggrandizing himself and pleasing Putin than protecting our allies. It would be enough to make Reagan ill.”

Others used Trump’s statements to draw a contrast between the current frontrunner in the GOP presidential primary, and President Joe Biden — who has been on the defense over his mental acuity after a special counsel report described him as an “elderly man with a poor memory.” The White House, Biden and other allies have forcefully refuted the characterization.

“Biden: 14.8m jobs; lower costs for insulin; repairs to road/bridges; health care for vets; cleaning up the environment; stronger alliances. And yes: mixed up a country leader’s name. And this happened, too,” Rep. Rick Larsen (D-Wash.) wrote on X, linking to a clip of Trump’s remarks. “Is there really a choice?”

Article 5 of the North Atlantic Treaty that launched NATO in 1949 calls for every country to defend every other in the event of an attack. “The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all,” it states. Article 5 was invoked in defense of the United States after the 9/11 attacks in 2001.

The 31 current members of NATO have agreed, as a target figure, to spend at least 2 percent of their GDP on defense, though some nations are below that figure.

The White House blasted Trump’s comments as “unhinged” Saturday night.

“Encouraging invasions of our closest allies by murderous regimes is appalling and unhinged— and it endangers American national security, global stability, and our economy at home,” White House spokesperson Andrew Bates said in a statement.

European leaders also criticized Trump’s comments.

“Any suggestion that allies will not defend each other undermines all of our security, including that of the US, and puts American and European soldiers at increased risk,” NATO Secretary General Jens Stoltenberg said.

Reminder: Donald Trump is an elderly man with a bad memory, a vulgar mouth, malicious views, a well-established record of misogyny, an unparalleled prevaricator, and no knowledge of world history or current events. He is currently facing 91 criminal counts in state and federal courts.

Categories Elections, Extremism, History, International

Just Security: What the Hur Report Really Said vs. The Headlines

By dianeravitch

February 11, 2024 //

I noticed on Twitter that Trump’s forces are saying that Biden and Trump did the same things, committed the same crimes, so the charges against Trump should be dropped. They go on to claim that Hur’s report “proves” that Trump is the victim of unequal justice. They do not acknowledge that Trump refused to return the top secret files he retained, lied about them, tried to conceal them, etc. His files contained nuclear secrets, Biden’s were in some instances his handwritten notes and in no instances were nuclear codes.

“Just Security” is a blog written by lawyers, based at NYU law School. Frustrated by misleading headlines about the Hur report, they posted this review of the Hur report.

It’s long but worth reading or skimming. Be sure to see the headlines at the end.

Just Security posted:

THE REAL ROBERT HUR REPORT VS. WHAT YOU READ IN THE NEWS

The Special Counsel Robert Hur report has been grossly mischaracterized by the press. The report finds that the evidence of a knowing, willful violation of the criminal laws is wanting. Indeed, the report, on page 6, notes that there are “innocent explanations” that Hur “cannot refute.” That is but one of myriad examples we outline in great detail below of the report repeatedly finding a lack of proof. And those findings mean, in DOJ-speak, there is simply no case. Unrefuted innocent explanations is the sine qua non of not just a case that does not meet the standard for criminal prosecution – it means innocence. Or as former Attorney General Bill Barr and his former boss would have put it, a total vindication (but here, for real).

But even without the prompting of a misleading “summary” by Barr, the press has gotten the lede wrong. This may be because of a poorly worded (we’re being charitable) thesis sentence on page 1 of Hur’s executive summary. Hur writes at the outset: “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” You have to wait for the later statements that what the report actually says is there is insufficient evidence of criminality, innocent explanations for the conduct, and affirmative evidence that Biden did not willfully withhold classified documents. Put another way, that same sentence about “our investigation uncovered evidence” could equally apply to Mike Pence, who had classified documents at his home, which is similarly some “evidence” of a crime, but also plainly insufficient to remotely establish criminality.

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.

To clarify thinking about this topic, let’s consider another way Hur could have represented his actual findings on page 1 of his executive summary:

“We have concluded that there is not a prosecutable case against Biden. Although there was a basis to open the investigation based on the fact that classified documents were found in Biden’s homes and office space, that is insufficient to establish a crime was committed. The illegal retention or dissemination of national defense information requires that he knew of the existence of such documents and that he knew they contained national defense information. It is not a crime without those additional elements. Our investigation, after a thorough year-long review, concludes that there is an absence of such necessary proof. Indeed, we have found a number of innocent explanations as to which we found no contrary evidence to refute them and found affirmative evidence in support of them.”

Below we first identify the relevant contents of the Hur report. We then provide a sampling of the erroneous press pronouncements.

I. What the Hur Report Actually Found

We let the Hur report speak for itself. For ease of reference, we group the report’s findings into several categories. However, we should emphasize one general finding at the outset. The Hur report states:

“In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute.” (p. 6)

Given the circumlocution in that statement, you may need to read it more than once. The statement alone is inconsistent with all the headlines below. Onto the more specific findings that are relevant to the elements of any potential criminal offenses. …

1. Lack of Evidence of Knowledge that Information Was Classified

“Mr. Biden should have known that by reading his unfiltered notes about classified meetings in the Situation Room, he risked sharing classified information with his ghostwriter. But the evidence does not show that when Mr. Biden shared the specific passages with his ghostwriter, Mr. Biden knew the passages were classified and intended to share classified information.” (p. 9-10)

Note: We note that this articulation is so reminiscent of James Comey’s embroidering of the facts: the bottom line is in the second sentence; the first sentence is irrelevant and serves no prosecutorial purpose, which leaves one to rightly wonder why it is included.

“The memo concerned deliberations from more than seven years earlier about the Afghanistan troop surge, and in the intervening years those deliberations had been widely discussed in public, so Mr. Biden could have reasonably expected that the memo’s contents became less sensitive over time. Because we cannot prove that he knew the memo was classified when he left office, we cannot prove that retaining the memo, he willfully retained national defense information.” (p. 221)
“These facts do not support a conclusion that Mr. Biden willfully retained the marked classified documents in these binders. The cover of one binder was marked unclassified, the other had no classification marking, and we cannot show that Mr. Biden reviewed the binders after his vice presidency or knew the classified documents were inside. It is plausible that he retained these documents by mistake.” (p. 332-333)
“In addition, Mr. Biden told us in his interview that he does not recognize the marking “Confidential” as a classification marking. To him, the marking means the document should be held in confidence, but not necessarily that it is classified. Although “Confidential” is, in fact, a category of classified information enumerated in the governing executive order, we would likely be unable to refute Mr. Biden’s claim that he did not know this.” (p. 221-222)

2. Lack of Evidence of Willful Retention

“Some of the documents in these files were marked classified, though, because of the passage of time, we do not know whether Mr. Biden willfully retained the classified documents or consulted them when writing the book.” (p. 170)
“We were limited in our ability to investigate these documents because of the significant passage of time since their creation. Although we cannot prove that Mr. Biden retained these classified documents willfully or used them in writing Promises to Keep, he did write about the foreign trips that were the subject of the documents.” (p. 177)
“[T]hree notebooks found in Mr. Biden’s Delaware home had marked classified documents placed inside them. One of these notebooks, labeled “Af/Pak 1,” is discussed in Chapter Six. For the other two, the evidence does not suggest either that Mr. Biden retained the classified documents inside them willfully, or that the documents contain national defense information.” (p. 326)
“Several defenses are likely to create reasonable doubt as to such charges. For example, Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not retain them willfully …. And the place where the Afghanistan documents were eventually found in Mr. Biden’s Delaware garage-in a badly damaged box surrounded by household detritus-suggests the documents might have been forgotten.” (p.4)
“It is possible that Mr. Biden encountered the classified Afghanistan documents at the Virginia home in February 2017, told Zwonitzer about them, and then, soon after, forgot about them and did not willfully retain them.” (p. 205)
“There is some indication that Mr. Biden’s staff may have advised him that his notecards contained classified information and needed to be held in a secured location. But the investigation did not determine what, if anything, Mr. Biden’s staffers actually told him on this subject.” (p. 65)
“For each of the marked classified documents found in Mr. Biden’s notebooks, we cannot prove that Mr. Biden knew about or intended to keep the document after he was vice president, or we cannot prove the document contains national defense information, or both. These documents do not support criminal charges against Mr. Biden.” (p. 329)

Box of Afghanistan documents found in Delaware home garage:

“While it is natural to assume that Mr. Biden put the Afghanistan documents in the box on purpose and that he knew they were there, there is in fact a shortage of evidence on these points. We do not know why, how, or by whom the documents were placed in the box. We do not know whether or when Mr. Biden carefully reviewed the box’s contents. We do not know why only some of Mr. Biden’s classified Afghanistan memos to President Obama from the fall of 2009 were found in the box, but several other memos he wrote during that time were not. And we do not know why Mr. Biden would have wanted to keep some of the other marked classified documents in the box—in particular, a classified document relating to President Obama’s second term foreign policy goals, which was kept in a folder right next to the Afghanistan documents, and which served no particular purpose of Mr. Biden’s of which we are aware.” (pp. 215-216)
“A reasonable juror could also conclude that, even if Mr. Biden found classified documents about Afghanistan in his Virginia home in February 2017, and even if he remembered he had them after that day, and even if they were the same documents found in his garage six years later and one hundred miles away in Delaware, there is a shortage of evidence that he found both the “Afganastan” folder and the “Facts First” folder …. And if Mr. Biden saw only the “Afganastan” folder and not the “Facts First” folder, which did contain national defense information, he did not willfully retain such national defense information.” (pp. 216-217)

Penn Biden Center and University of Delaware:

“The evidence suggests that the marked classified documents found at the Penn Biden Center were sent and kept there by mistake.” (p. 311)
“In January, February, and June 2023, FBI agents identified and recovered just over a dozen marked classified documents in Mr. Biden’s Senate-era papers housed at the University of Delaware. Almost all of these documents predate the Senate’s establishment of rules for the tracking and handling of classified information. The evidence does not suggest that Mr. Biden willfully retained these documents. Rather, they appear to have been included in his large collection of Senate papers by mistake.” (p. 312)
“The evidence does not establish that Mr. Biden or anyone else knowingly removed or retained the classified documents found at the University of Delaware. These documents appear to have been included in his Senate papers by mistake.” (p. 323)
“No evidence suggests he knew these classified documents were within his massive collection of Senate papers. Further, given the age of the documents, we found no evidence that Mr. Biden personally viewed any of them while he was a member of the Senate. Mr. Biden sat on the committee that generated these documents, but it is entirely plausible they were handled by a staff member and that Mr. Biden never handled the documents himself before they were filed among his papers. There is also no record of Mr. Biden’s review of the documents before or after he donated them to the University.” (p. 323)
“For these reasons, it is likely that the few classified documents found in Mr. Biden’s Senate papers were there by mistake.” (p. 325)
“There is insufficient evidence to prove beyond a reasonable doubt that Mr. Biden intentionally retained the classified documents in the EYES ONLY envelope after his term as vice president or caused his staff to do so. Instead, the evidence supports an innocent explanation for the unauthorized retention of those documents.” (p. 304)
“In summary, the innocent explanation for the retention of the classified documents in the EYES ONLY envelope at the Penn Biden Center is not only plausible, it is a better explanation than one of willful retention. There is thus insufficient evidence to support charging Mr. Biden or anyone else with willful retention of the documents in the EYES ONLY envelope at the Penn Biden Center.” (p. 307)
“The evidence does not suggest that Mr. Biden willfully retained documents A1 or A2, which related to engagement with China in President Obama’s second term and a summary of meetings with foreign leaders during a United Nations General Assembly Week …. The more plausible explanation for the unauthorized retention of documents A1 and A2 is that the executive assistant stored and moved documents A1 and A2 to the Penn Biden Center unwittingly.” (p. 307-308)
“There is insufficient evidence to show Mr. Biden willfully retained document A8 for many of the same reasons as documents A1 and A2. Document A8 is a background memo for a meeting with a foreign leader …. For many of the same reasons as stated for documents A1 and A2, the more plausible explanation for the unauthorized retention of document A8 is that the executive assistant stored and moved it to the Penn Biden Center unwittingly.” (p. 309-310)

3. Lack of Evidence of Willful Disclosure

“[W]e conclude that the evidence does not establish that Mr. Biden willfully disclosed national defense information to Zwonitzer.” (p. 248)
“This evidence shows that Mr. Biden disclosed classified information to Zwonitzer, who was not authorized to receive it. But the evidence falls short of proving that Mr. Biden did so willfully—that is, that he knew these notebook passages were classified and that he intended to share classified information with Zwonitzer.” (p. 245)

4. Lack of Evidence of Transportation of Documents

“We were unable to determine how the marked classified Afghanistan documents got from the White House, where Mr. Biden possessed them as vice president in 2009, to his Delaware home, where they were found in 2022 …. Ultimately, we could not determine precisely when the box containing the Afghanistan documents got into the garage, or who put the documents there.” (p. 150)
“But there are alternative explanations for how the Afghanistan documents got into the garage box that are also consistent with the evidence described above. As discussed in Chapter Eleven, we find the evidence as a whole insufficient to meet the government’s burden of proving that Mr. Biden willfully retained the Afghanistan documents in the Virginia home in 2017.” (p. 168-169)

5. Lack of Evidence of Possession

The Hur report centers on one of the apparently most incriminating statements by Biden to his ghostwriter. While in his home in Virginia. Biden said he had “just found all the classified stuff downstairs.” The question is what he meant and whether there was any evidence the home in Virginia actually ever stored the relevant documents. The Hur report found an absence of evidence. His report states he found no evidence that “conclusively” places the relevant documents at the location, but it appears to be no evidence more generally if at all:

“Given Mr. Biden’s limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriterabout finding classified documents in Virginia, in the absence of other, more direct evidence. We searched for such additional evidence and found it wanting. In particular, no witness, photo, email, text message, or any other evidence conclusively places the Afghanistan documents at the Virginia home in 2017.” (p. 5-6)
“We were unable to determine whether any classified documents were inadvertently moved to the Virginia home when Mr. Biden moved out of the Naval Observatory.” (p. 152-153)
“Another viable defense is that Mr. Biden might not have retained the classified Afghanistan documents in his Virginia home at all. They 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. This would rebut charges that he willfully retained the documents in Virginia.” (p. 5)
“The second potential defense argument is that Mr. Biden may not have retained the classified Afghanistan documents in Virginia home at all. While there is evidence that he did, most notably his recorded statement to Zwonitzer in February 2017, that evidence is not conclusive. First, as discussed in Chapter Seven, while the evidence provides clues classified Afghanistan documents were stored in the Virginia home, there is no definitive evidence putting them there.” (p. 211)
“Mr. Biden could have found only some of the classified Afghanistan documents in the Virginia home in 2017-the ones in the manila “Afghanistan” folder found init is unclear whether this folder contained national defense information. This too would rebut charges that he willfully retained national defense information, as required by the criminal Statute.” (pp. 204-05)
“When Mr. Biden told his ghostwriter he “just found all the classified stuff downstairs,” he could have been referring to something other than the Afghanistan documents, and our report discusses these possibilities in detail.” (p. 6)

6. Evidence of Intent to Return Classified Documents

Around the same time as the relevant period, Biden proactively returned other classified documents to government authorities that he discovered in his home. The report notes this evidence supports Biden’s innocence.

“But another inference the evidence permits is that Mr. Biden returned the binder of classified material to the personal aide because, after leaving office, Mr. Biden did not intend to retain any marked classified documents. As Mr. Biden said in his interview with our office, if he had found marked classified documents after the vice presidency, “I would have gotten rid of them. I would have gotten them back to their source…. I had no purpose for them, and I think it would be inappropriate for me to keep clearly classified documents.” Some reasonable jurors may credit this statement and conclude that if Mr. Biden found the classified Afghanistan documents in the Virginia home, he forgot about them rather than willfully retaining them.” (p. 206)
“Many will conclude that a president who knew he was illegally storing classified documents in his home would not have allowed a search of his home to discover those documents and then answered the government’s questions afterwards. While various parts of this argument are debatable, we expect the argument will carry real force for many reasonable jurors. These jurors will conclude that Mr. Biden–a powerful, sophisticated person with access to the best advice in the world would not have handed the government classified documents from his own home on a silver platter if he had willfully retained those documents for years. Just as a person who destroys evidence and lies often proves his guilt, a person who produces evidence and cooperates will be seen by many to be innocent.” (p. 210)

7. Evidence of Belief that Documents Were Permissibly Retained, e.g., as “Personal Records”

One of the central issues is whether Biden believed his handwritten notebooks counted as “personal records” under the Presidential Records Act (§ 2201(3)(A)), which could provide a defense. The Hur report finds evidence that Biden did hold this belief, including a contemporaneously recorded conversation with Biden in 2017.

“We expect Mr. Biden also to contend that the presence of classified information in what he viewed as his diary did not change his thinking. As a member of the exclusive club of former presidents and vice presidents, Mr. Biden will claim that he knew such officials kept diaries, and he knew or expected that those diaries-like Mr. Reagan’s-contained classified information. He also understood that former presidents and vice presidents took their diaries home upon leaving office, without being investigated or prosecuted for it. Thus, whatever McGrail now thinks of the matter, Mr. Biden will claim that it did not occur to him to store what he thought of as his personal diaries-which he held close for eight years-at the National Archives, and he certainly did not know that by failing to do so he committed a crime. Contemporaneous evidence from immediately after the vice presidency supports this defense. In a recorded conversation with Zwonitzer on April 26, 2017, three months after leaving office, Mr. Biden said the following:

Biden: I’m told by [a personal aide], I guess he checked with you, in order for me to get my, uh, get all those presidential notes I had for lunch, the luncheon meetings, I have to go to McGrail?
Assistant: Yes, McGrail has them. We were supposed to turn it in and that is the last person who had them.
Mr. Biden: OK. Uh. See if you can get me McGrail on the line while I have you now. OK? And stay on okay? Assistant: Got it sir. Hold on.
Zwonitzer: This is probably something that goes to the presidential papers.
Mr. Biden: I don’t think so. It was in between. I didn’t want to turn them in.
Zwonitzer: Right so, it’s the gray area.” (p. 236).

Note: This excerpt above includes the statement that Biden “certainly did not know that by failing to do so he committed a crime.” That is a misstatement of the law. The offense requires knowledge and willfulness. The wording in the report may mislead readers.

“During our interview of him, Mr. Biden was emphatic, declaring that his notebooks are “my property” and that “every president before me has done the exact same thing,” that is, kept handwritten classified materials after leaving office. He also cited the diaries that President Reagan kept in his private home after leaving office, noting that they included classified information.” (p. 8)
“Contemporaneous evidence suggests that when Mr. Biden left office in 2017, he believed he was allowed to keep the notebooks in his home. In a recorded conversation with his ghostwriter in April 2017, Mr. Biden explained that, despite his staff’s views to the contrary, he did not think he was required to turn in his notecards to the National Archives–where they were stored in a SCIF–and he had not wanted to do so. At trial, he would argue plausibly that he thought the same about his notebooks.” (p. 8-9)
“In Mr. Biden’s interview with our office, he explained that he took his notebooks with him after his vice presidency because “[t]hey are mine,” and explained that “every President before me has done the same exact thing.” He also specifically referenced President Reagan, who, after leaving office, kept handwritten diaries containing classified information at his private home, as discussed in Chapter Ten. In later written answers, Mr. Biden wrote that, “[l]ike presidents and vice presidents before me, I understand these notes to be my personal property.” (p. 94)
- “After the Act’s passage, at least one former president, President Reagan, left office with his presidential diaries, which contained classified information, and stored those diaries at his private home. The Department of Justice, the National Archives, and others knew that President Reagan treated his diaries (containing classified information) as personal property, but no agency took action to recover the classified materials or to investigate or prosecute the former president …. The Department of Justice also repeatedly described the diaries in public court filings as Mr. Reagan’s personal records.” (p. 193-195)
- “The wider American public also knew of the existence of Mr. Reagan’s diaries. Indeed, the diaries served as sources for at least three publications that Mr. Reagan or his representatives authorized: (1) An American Life, Mr. Reagan’s autobiography published in 1990; (2) Dutch, a biography authored by Edmund Morris and published in 1999; and (3) The Reagan Diaries, a collection of the diaries themselves first published in 2007 after Mr. Reagan’s death.” (p. 197)
“Contemporaneous evidence suggests that when Mr. Biden left office in 2017, he believed he was allowed to keep the notebooks in his home. In a recorded conversation with his ghostwriter in April 2017, Mr. Biden explained that, despite his staff’s views to the contrary, he did not think he was required to turn in his notecards to the National Archives–where they were stored in a SCIF–and he had not wanted to do so. At trial, he would argue plausibly that he thought the same about his notebooks.” (p. 8-9)
“That Mr. Biden was mistaken in his legal judgment is not enough to prove he acted willfully, which requires intent to do something the law forbids.” (p. 239)

8. Evidence of Retention By Mistake

“A reasonable juror could conclude that this is not where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy. Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of.” (p. 209)
“After more than forty years in the highest ranks of government, he was accustomed to having staff members attend to the details of handling, storing, and retrieving classified documents. For a person of his position, the presence of classified documents might not have been noteworthy, and it may have seemed natural that someone else would inevitably take care of it, because, for Mr. Biden, that is how it had nearly always worked.” (p. 205-06)
“FBI agents found one document with classification markings in the third-level den area …. We cannot show that Mr. Biden knew this document was in his home, and the location of this document with unrelated materialsmakes it plausible that it was filed in error and that Mr. Biden kept this document by mistake.” (p. 333)
“For other recovered classified documents, after a thorough investigation the decision to decline criminal charges was straightforward. The FBI recovered additional marked classified documents at the Penn Biden Center, elsewhere in Mr. Biden’s Delaware home, and in collections of his Senate papers at the University of Delaware, but the evidence suggests that Mr. Biden did not willfully retain these documents and that they could plausibly have been brought to these locations by mistake. We also investigated whether persons other than Mr. Biden knowingly mishandled these classified documents, and our investigation showed that they did not. In reaching these conclusions, we note the numerous previous instances in which marked classified documents have been discovered intermixed with the personal papers of former Executive Branch officials and members of Congress.” (p. 12)

I. What the Media Reported

The headlines below are also reflected in the content of news reports (see, e.g., this example by the New York Times.)

Special counsel finds Biden ‘willfully’ retained classified documents, no charges filed

https://www.foxnews.com/politics/no-charges-biden-classified-records-special-counsel-robert-hur

https://edition.cnn.com/2024/02/08/politics/white-house-special-counsels-report-response/index.html

https://www.pbs.org/newshour/show/biden-willfully-withheld-classified-docs-but-will-not-be-charged-special-counsel-says

https://www.cnbc.com/2024/02/08/biden-docs-probe-final-report-issued-by-special-counsel-robert-hur-.html

https://www.bbc.com/news/live/world-us-canada-68247337

https://www.cbsnews.com/news/biden-special-counsel-report-handling-classified-documents/

The authors thank Clara Apt and Elise Barber for their excellent assistance in research.

Photo credit: Zach Gibson/Getty Images

Categories Biden, Justice

Washington Post: Did Hur Violate DOJ Protocols?

By dianeravitch

February 11, 2024 //

Perry Stein of The Washington Post asked the question that many others are asking: Did Special Counsel Robert Hur include inappropriate speculation about Biden in his voluminous report about the classified documents found in Biden’s home and offices? Why? The Justice Department typically does not disclose lengthy reports about a person who has been exonerated and will not be charged. Why did DOJ violate that long-standing policy? Who allowed Hur’s political ruminations to remain in the report? Why was it published? Did Hur recognize that his personal observations would affect the Presidential campaign? Did he “Comey” Biden? Why did Garland select a former Trump appointee to investigate Biden? Is he naive or was he trying to prove how nonpartisan he is?

She writes:

The conclusion laid out in special counsel Robert K. Hur’s final report was straightforward: Joe Biden mishandled classified materials in 2017, though there was not enough proof that he intended to break the law to meet the Justice Department’s high prosecution threshold.

But the 345-page report also contained explosive information about President Biden’s allegedly faulty memory, overshadowing the issue of how he stored sensitive government materials after his vice presidency ended.

Hur portrayed the president as an elderly man who shared sensitive information with his ghostwriter andstruggled to remember key details in his life — unleashing calls from Republicans that Biden is unfit to serve, and a furious backlash from Democrats who said assessments of the president’s memory were inappropriate.

The appointment of a special counsel is intended to make high-profile, sensitive investigations as independent and apolitical as possible. But current and former Justice Department officials said the increasing reliance on special counsels to handle such investigations has upended a central principle of the agency: to avoid prejudicing the public against people who are not charged.

“Special Counsel Hur report on Biden classified documents issues contains way too many gratuitous remarks and is flatly inconsistent with long standing DOJ traditions,” former Attorney General Eric Holder, a Democrat, wrote on social media Friday. “Had this report been subject to a normal DOJ review these remarks would undoubtedly have been excised.”

Hur’s blistering characterization of Biden has made the report intractable from politics during an election year in which Biden’s opponents already were focused on his age and questioning his mental fitness.

Some legal experts say aspects of thereport have echoes of FBI Director James B. Comey’s decision in 2016 to call Hillary Clinton “extremely careless” as he publicly announced that he would be closing an investigation into her use of a private email server while she was secretary of state.

Comey was a top federal law enforcement official whose agency is not responsible for deciding when to prosecute. Unlike Hur, he was not tasked with issuing a report to explain his investigation. But he broke with FBI protocol by publicly discussing an investigation that ended without charges. And his words impugned Clinton’s credibility ahead of the presidential election in which she was the Democratic nominee, just as Hur’s report seems to have done with Biden as he seeks a second term.

Attorneys general typically name special counsels to lead investigations when the public could reasonably perceive a conflict of interest if the attorney general — a presidential appointee — were to oversee it. A special counsel has more independence from Justice Department leaders than other federal prosecutors, but still ultimately answers to the attorney general.

Hur was appointed by Attorney General Merrick Garland, who promised Congress even before he saw the report that he would make as much of it public as he was legally allowed to do.

Garland named Hur to investigate classified material found in Biden’s private home and former think tank office months after he appointed a special counsel to investigate former president Donald Trump’s potential mishandling of classified materials, as well as Trump’s alleged efforts to overturn the 2020 election results. Garland also appointed a special counsel to investigate Biden’s son, Hunter. Both the Trump and the Hunter Biden special counsels have led to criminal charges detailed in federal grand jury indictments, which contain far less information than special counsel reports.

Under department regulations, a special counsel submits a confidential report to the attorney general, explaining his or her decisions whether to prosecute (Justice Department policy precludes charging sitting presidents). It is up to the attorney general to decide whether to make that report public.

When Garland received Hur’s report Monday, he could have made redactions before he sent it to Congress. President Biden could have also exerted executive privilege and made redactions. But neither did. Had they wanted to, legal experts said, they would have had to inform Congress, and likely would have received intense backlash from Republicans.

Congressional leaders are likely to ask Hur to testify about the report. Lawmakers have already asked the Justice Department to release the transcripts and records of the interviews that were part of the investigation.

Hur’s report lists many reasons it would be difficult to convict Biden of willfully mishandling classified documents when he was out of office — including that Biden knew some of his predecessors also had kept notebooks with sensitive information, and that his handling of his own notebooks in 2017 showed instances where he “took steps to ensure” he did not share classified information with the person helping him to write a memoir. The report said some classified material found in Biden’s possession appeared to have been packed up by staff by mistake, and noted that, as president, Biden quickly handed over classified material his aides found last year.

But Hur also used scathing details about Biden’s memory lapses to help explain why he was declining to recommend pursuingcharges against the president after he leaves office. Among the reasons: Biden’s memory was reportedly so bad that a jury would struggle to believe he intentionally retained the classified information.

“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur wrote in the report. “It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”

Hur is a well-respected attorney who served as U.S. attorney in Maryland and as a senior Justice Department official during the Trump administration. When he was appointed special counsel, his former colleagues described him as fair-minded and apolitical. He vowed to lead the investigation with “fair, impartial, and dispassionate judgment.”

Harvey Eisenberg, a recently retired assistant U.S. attorney who worked with Hur in Maryland, said that Justice Department rules require prosecuting decisions based on a “reasonable probability of conviction.”

In the report, Harvey said that Hur appeared to include details about Biden’s memory to show how he assessed whether there was a strong chance that Biden would, hypothetically, be convicted at trial. Hur wrote that the president’s struggle to recall specific details of when and where he handled documents would have made it harder to convince a jury that he deliberately broke the law.

“He never uttered a political word to me or showed an inclination to have politics play a part in any decisions that I was making,” said Eisenberg, who was not involved with the special counsel. “I’m sure he didn’t take it lightly, that would be atypical of who I know the man to be.”

Neal Katyal, a former acting solicitor general under President Barack Obama, helped craft the special counsel regulations in the 1990s, as a young Justice Department lawyer. Katyal said officials at the time expected that most special counsel reports would not be made public, given long-standing Justice Department guidelines to not comment when prosecutors decline to indict someone.

But that’s changed in recent years. In 2019, special counsel Robert S. Mueller III’s investigation into possible Russian interference in the 2016 presidential election helped establish a new norm: Reports would be made public, in an effort to demonstrate transparency and that an investigation was thorough and fair.

Katyal, citing his own role in creating the special counsel rules, wrote an op-ed in The Washington Post that year saying Mueller’s report should be released so that the public would “have confidence that justice was done.”

On Friday, Katyal questioned Hur’s decision to include Biden’s alleged mental lapses during hours of interviews, including that he could not remember the year his son Beau died of cancer and struggled to recall the years of his vice presidency (Biden angrily denied those characterizations after the report was released).

“Perhaps there was some justification for special counsel Hur to comment on the president’s age and mental fitness, but I severely doubt it, and the report is not reassuring in this regard,” Katyal said in an email. “It seems gratuitous and wrong.”

Justice Department declination memos — which prosecutors write when they decide not to pursue charges, essentially ending an investigation — are virtually never made public. That’s in part because Justice Department guidance says that prosecutors should be sensitive to the privacy and reputation of people they are not charging. When charged,criminal defendants have the chance to defend themselves in a court of law. But when a person is publicly accused of problematic behavior but not charged, they have no opportunity to present evidence and mount a defense. [My emphasis added-DR]

Legal experts said that what’s so striking about the Hur report.

“It would have been sufficient to say that we did not have sufficient evidence that he was acting willfully,” Barbara McQuade, a law professor at the University of Michigan Law School and former federal prosecutor, said at a public roundtable on Friday. “To instead besmirch his reputation struck me as going a bit above and beyond what you would expect from an ordinary prosecutor.”

As a special counsel, Hur’s “legal outcome is indeed fair and appropriate,” said Anthony Coley, a former Justice Department employee who was the agency’s top spokesman when Garland appointed Hur last January. “But the editorializing — the excessive, unnecessary commentary about an uncharged individual — does not reflect DOJ’s best traditions.”

Aaron C. Davis and Ann E. Marimow contributed to this report.

Perry Stein covers the Justice Department and FBI for The Washington Post. She previously covered D.C. education. Before she joined The Post in 2015, she was a staff writer for Washington City Paper and wrote for the Miami Herald.

Categories Accountability, Bias, Biden, Elections, Justice

The Inside Story: Biden Aides Who Attended Hur Interview Stunned by Report

By dianeravitch

February 11, 2024 //

Matt Viser of The Washington Post spoke to sources inside the Biden White House who had first-hand knowledge of President Biden’s five-hour interview with Special Counsel Robert K. Hur and his team. Viser reports that Biden’s associates were shocked by the derogatory statements in Hur’s report, casting doubt on Biden’s mental competence. They thought the meeting went well. From the report, it appears that Hur asked questions about dates and details that caught Biden off-guard, and Hur used Biden’s uncertainty to demean his intelligence.

As you read the reporting from people who were in the room, it appears that Hur asked “gotcha” questions (do you remember what you did six years ago? And do you remember the exact date? And what about that memo from 2009? Do you know which box it is in? Who put it there?)

Viser wrote:

President Biden had just spoken with Israeli Prime Minister Benjamin Netanyahu the morning of Oct. 8, agonizing over how to rescue hostages taken by Hamas in its bloody attack the previous day, pledging American assistance, and weighing a volatile situation that threatened to spiral out of control in the Middle East.

Shortly after they hung up, the president’s personal attorney, Bob Bauer, and White House counsel Ed Siskel arrived at the White House. The group walked down one flight of stairs to the Map Room, where Biden was to be interviewed by special counsel Robert K. Hur, who for nine months had been investigating Biden’s handling of classified documents.

Those five hours and 10 minutes of interviews, unfolding over two days, would turn out to be momentous. But at the time, few foresaw how they would blow up four months later — not because of their content, but because Hur would repeatedly deride Biden’s memory during their time together. In a long-awaited report issued this week, Hur declined to prosecute Biden over his handling of classified documents but cast doubt on his memory, threatening to upend Biden’s pursuit of reelection by dwelling on perhaps his biggest political liability.

Hur’s description of Biden’s demeanor as that of a “well-meaning, elderly man with a poor memory” would infuriate Biden’s aides, who saw it as sharply at odds with what occurred as the president sat for voluntary questioning, according to two people familiar with the matter who spoke on the condition of anonymity to recount internal discussions. Hur cited the president’s ostensible memory problems in concluding that he would have trouble convincing a jury that Biden had willfully mishandled classified documents.

In the view of Biden’s team, the interviews proceeded in a routine, even dry, manner, as prosecutors asked Biden where he bought a particular file cabinet and how certain boxes were packed.

Biden himself was focused at the time on more immediate and world-shaking matters, having just made a round of phone calls to U.S. allies that would affect the roiling situation in the Middle East.

Biden and his attorneys even discussed postponing the interview, but they ultimately decided against it. They had already blocked off two days on the president’s schedule and, with the investigation already dragging on much longer than anticipated, were eager to put it behind them. They never contemplated resisting Hur’s request for the interview, figuring Biden had little to hide and would benefit from being transparent, according to members of his legal team.

Inside the White House, workers had converted a space on the first floor into a secure setting where classified information could be discussed. Long tables were brought into the Map Room, which takes its name from President Franklin D. Roosevelt’s use of the space to consult maps and track the progress of World War II. It is also the room where, in 1998, President Bill Clinton testified to independent counsel Kenneth W. Starr about his role in the Monica Lewinsky scandal.

Biden and Hur sat across from each other, each with about four aides. Bottles of water sat on the table. Biden was flanked by Bauer to his right and Siskel to his left. Hur, who would be asking the questions, was accompanied by his deputy Marc Krickbaum, a former U.S. attorney for the Southern District of Iowa, and several FBI agents.

The session started roughly on time, a rarity for the perennially late Biden. Hur introduced himself, noted the presence of a tape recorder that would be recording the session, listed everyone in the room, and began matter-of-factly interrogating the president.

The topics were straightforward, according to the people familiar with the matter and Hur’s later report, tracking years-old movements of boxes full of documents, including those that were packed up as Biden finished his vice-presidential term. Hur asked how documents were packed and shipped, and by whom. Biden was asked when he purchased specific file cabinets and what he stored in them.

There were a few moments when one side or the other cracked a modest joke, with a mood more conversational than confrontational. But the subject matter, and the tone, was mostly dry and factual, according to the people.

In some cases, Hur or his assistants would ask Biden to confirm that the handwriting on certain documents was his own — including on a folder that contained “Afganastan,” a misspelling that prosecutors later said repeatedly showed up in Biden’s writing dating back to the 1980s.

The president’s team had spent significant time preparing Biden to discuss his role in handling the documents, as well as his views on the propriety of keeping notecards where he had jotted down classified information, assuming that was what Hur was interested in. They did not anticipate that the president’s ability to recall dates or other details would figure into the questioning, let alone form such a devastating element of Hur’s report.

“Christ, that goes back a way,” Biden said at one point, reviewing a folder that read “Pete Rouse,” a longtime Senate staffer who was later an aide to President Barack Obama.

Biden at times told Hur he had limited knowledge of how the documents ended up where they did. He was asked at one point how a binder labeled “Beau Iowa” ended up in a well-worn box in his garage that also contained sensitive government material. Beau Biden, the president’s son, died of brain cancer in 2015.

“’Somebody must’ve, packing this up, just picked up all the stuff and put it in a box, because I didn’t,” he said, according to Hur’s report.

Hur later recounted that Biden could not remember exactly what year his vice-presidential tenure began or ended, citing that as evidence his memory was “significantly limited.” The president’s allies forcefully reject that characterization.

At some point, the discussion turned to the year when Beau died; Hur later reported that Biden could not recall the year with specificity. Biden has angrily denied not knowing when his son passed away, adding that it was not Hur’s business to ask such a question in the first place.

It is unclear exactly how Beau Biden came up during the interview, but some classified documents were found intermingled with photos of Beau and condolence notes that were received after his death. Investigators also reviewed Biden’s notebooks, some of which included “entries about purely personal subjects, such as the illness and death of his son, Beau,” they later reported. Beau also came up as they asked about his post vice-presidential pursuits, which included the Cancer Moonshot.

In addition, investigators explored the use of classified materials for Biden’s book “Promise Me, Dad,” which covered the aftermath of Beau’s death, though they concluded that no secret material made it into publication.

After several hours of questioning on Oct. 8, the two sides came to a stopping point and finished for the day. Later that afternoon, a live band could be heard from outside the White House as the president and first lady Jill Biden hosted a barbecue for staffers of the executive residence and their families.

The next day was Columbus Day, a Monday and a federal holiday. In the morning, Biden met with his senior national security advisers to continue discussing the situation in Israel. They were especially concerned about Iran and its proxies seizing advantage of the unstable situation and the possibility that the conflict could spread and engulf the broader Middle East.

One senior administration official involved in the Israel response, speaking on the condition of anonymity to discuss private discussions, said they had no idea that Biden had also been sitting for the special counsel interviews in the midst of the international crisis.

Biden planned that afternoon to speak with close allies of the United States, in hopes of sharing information and coming up with a joint position and strategy. But first, around midday, it was time to continue the meeting with the special counsel and his team. The two sides again filed into the Map Room, where the setup was the same as the day before.

One line of inquiry that afternoon involved a memo that Biden had sent to Obama in 2009 about Afghanistan — a classified document that Biden took from the White House and was later found in his garage, sitting in a damaged cardboard box near a dog crate, a broken, duct-taped lamp, and synthetic firewood. Biden had a copy of the memo, the special counsel later said, because he viewed it as a key piece of evidence showing that he was right to argue within the Obama administration for a drawdown of troops in Afghanistan, a recommendation Obama nonetheless rejected.

Biden told Hur that he had stayed up late on Thanksgiving, writing by hand the only memo that he ever sent solely to Obama and no one else in the government, Hur’s report said.
“I was trying to change the president’s mind, and I wanted to let him know I was ready to speak out … and to really, quite frankly, save his ass,” Biden told the special counsel during the Oct. 9 interview.

He initially told Hur that he was not aware he had kept the memo after his vice presidency ended in January 2017. Asked a follow-up question, he responded, “I guess I wanted to hang on to it for posterity’s sake. I mean, this was my position on Afghanistan. And it later became discussed …. It became discussed inside the foreign policy establishment that I was recommending it.”

Emerging from the interview, Biden and his team felt the sessions had mostly gone as expected. It never occurred to them that Hur’s final report would provide scathing descriptions of Biden’s ostensible memory lapses, making his conclusions politically explosive even as he concluded that no charges were merited against Biden for mishandling classified documents.

The shock of Biden’s lawyers is evident in a letter they wrote in response to the report.
“At the outset of the interview, you recognized that the questions you planned to ask ‘relate to events that happened years ago,’ but nonetheless expressed your hope that the president would ‘put forth [his] best efforts and really try to get [his] best recollection in response to the questions we ask,’” Biden’s attorneys wrote. “It is hardly fair to concede that the president would be asked about events years in the past, press him to give his ‘best’ recollections, and then fault him for his limited memory.”

All that, however, was in the future. For the moment, Biden’s lawyers felt the interview had gone as well as could be expected.

And Biden had more urgent issues.

Immediately after the interview concluded, he walked to the Oval Office to meet with his national security team and call European counterparts. He also called Sen. Cory Booker (D-N.J.) who was in Israel, to check on him and see if there was anything the White House could provide.

That night, the White House was illuminated in blue and white, the colors of the Israeli flag, to express solidarity with an ally that had just lost more than 1,000 citizens to a terrorist attack and was about to launch a long, deadly war. Biden, according to a person close to him, had retired to the residence that night to work on a speech he would deliver the next day.

Yasmeen Abutaleb, Perry Stein and Tyler Pager contributed to this report.

Matt Viser is a White House reporter for The Washington Post. He joined The Post in October 2018, covering the midterms and the 2020 presidential election before moving over to the White House to cover President Biden’s administration. He was previously deputy chief of the Washington bureau for the Boston Globe.

Categories Bias, Biden, Elections, Justice

Marcy Wheeler: Hur’s Witch Hunt Comes Up with Nothing

By dianeravitch

February 10, 2024 //

121

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.

Categories Bias, Biden, Elections, Trump

Heather Cox Richardson: Hur Report Was a “Political Hit Job”

By dianeravitch

February 10, 2024 //

Heather Cox Richardson confirmed my reaction to the Hur report. It rambles on repetitively and tediously for 388 pages. But a one-page summary would have told its central funding: classified documents— from the 1970s and from his Vice-Presidency (2009-2017), mostly in his hand-written notebooks—were found in his homes and offices, but there will be no charges against him because there is no evidence of a crime. Biden was completely exonerated. The report’s multiple references to Biden’s age, mental acuity, and memory were gratuitous.

The media takeaway, however, was purely political: Biden’s mental fitness to serve as President became the headline, not the fact that he was completely exonerated.

Should Merrick Garland have expected something different from a prosecutor who is a member of the Federalist Society and who previously was appointed by Jeff Sessions and Trump? Of course, the full report would have leaked, given the political background of its author.

Garland had the duty to review the voluminous and repetitive text before it was released. He could have decided that it should be condensed into a 1-3 page summary, as the investigation of Mike Pence’s documents was. But Garland was afraid it would leak so he didn’t touch it.

Richardson writes:

Yesterday, Special Counsel Robert Hur, appointed by Attorney General Merrick Garland in January 2023 to investigate President Joe Biden’s handling of classified documents before he was president, released his report. It begins: “We conclude that no criminal charges are warranted in this matter. We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.” The Department of Justice closed a similar case against former Vice President Mike Pence on June 1, 2023, days before Pence announced his presidential bid, with a brief, one-page letter.

But in Biden’s case, what followed the announcement that he had not broken a law was more than 300 pages of commentary, including assertions that Biden was old, infirm, and losing his marbles and even that “[h]e did not remember, even within several years, when his son Beau died” (p. 208).

As television host and former Republican representative from Florida Joe Scarborough put it: “He couldn’t indict Biden legally so he tried to indict Biden politically.”

Biden, Vice President Kamala Harris, and their teams came out swinging against what amounted to a partisan hit job by a Republican special counsel. The president’s lawyers noted that it is not Department of Justice practice and protocol to criticize someone who is not going to be charged, and tore apart Hur’s nine references to Biden’s memory in contrast to his willingness to “accept…other witnesses’ memory loss as completely understandable given the passage of time.”

They pointed out that “there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours. This is especially true under the circumstances, which you do not mention in your report, that his interview began the day after the October 7 attacks on Israel. In the lead up to the interview, the President was conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team.”

Nonetheless, they note, Biden provided “often detailed recollections across a wide range of questions, from staff management of paper flow in the West Wing to the events surrounding the creation of the 2009 memorandum on the Afghanistan surge. He engaged at length on theories you offered about the way materials were packed and moved during the transition out of the vice presidency and between residences. He pointed to flaws in the assumptions behind specific lines of questioning.”

They were not alone in their criticism. Others pointed out that Republicans have made Biden’s age a central point of attack, but Politico reported last October that while former House speaker Kevin McCarthy (R-CA) was publicly mocking Biden’s age and mental fitness, he was “privately telling allies that he found the president sharp and substantive in their conversations.” Dan Pfeiffer of Pod Save America and Message Box noted that the report’s “characterizations of Biden don’t match those relayed by everyone who talks to him, including [Republicans].”

He explained: “There are few secrets in [Washington], and if Joe Biden acted like Hur says, we would all know. Biden meets with dozens of people daily—staffers, members of Congress, CEOs, labor officials, foreign leaders, and military and intelligence officials…. If Biden was regularly misremembering obvious pieces of information or making other mistakes that suggested he was not up to the job, it would be in the press. Washington is not capable of keeping something like that secret.”

But the media ran not with the official takeaway of the investigation—that Biden had not committed a crime—or with a reflection on the accuracy or partisan reason for Hur’s commentary, but with Hur’s insinuations. Josh Marshall of Talking Points Memo noted that the New York Times today ran five front-page stories above the fold about the report and Biden’s memory….

As far back as 1950, when Senator Joe McCarthy (R-WI) insisted—without evidence—that the Department of State under Democratic president Harry Truman had been infiltrated by Communists, Republicans have used official investigations to smear their opponents. State Department officials condemned McCarthy’s “Sewer Politics” and the New York Timescomplained about his “hit-and-run” attacks, but McCarthy’s outrageous statements and hearings kept his accusations in the news. That media coverage, in turn, convinced many Americans that his charges were true.

Other Republicans finally rejected McCarthy, but in 1996, congressional Republicans frustrated by the election of Democratic president Bill Clinton in 1992 and the Democrats’ subsequent expansion of the vote with the so-called Motor Voter law in 1993 resurrected his tactics. They launched investigations into two elections they insisted the Democrats had stolen. They discovered no fraud, but their investigation convinced a number of Americans that voter fraud was a serious problem.

There were ten investigations into the 2012 attack on two U.S. government facilities in Benghazi, Libya, in which four Americans were killed and several others wounded; Republican-dominated House committees held six of them. Kevin McCarthy bragged to Fox News personality Sean Hannity that the Benghazi special committee was part of a “strategy to fight and win” against then–Secretary of State Hillary Clinton.

The strategy of weaponizing investigations went on to be central to the 2016 election, when Trump ran on the investigation of Clinton’s email practices, and to the 2020 election, when Trump tried to weaken Biden’s candidacy by trying to force Ukraine president Volodymyr Zelensky to say that Ukraine was opening an investigation into Hunter Biden and the company he worked for.

Going into 2024, the House is investigating Hunter Biden, and while witness testimony and evidence has not supported their contention that President Biden is corrupt, the stench of the hearings has convinced a number of MAGA voters of the opposite.

And now the media appears to be falling for this strategy yet again.

Political commentator Brian Tyler Cohen outlined how Biden’s performance disproves the argument that he is unfit for the presidency: “The thing about Biden’s memory,” Cohen wrote, “is that he’s presided over the addition of ~15 million jobs & 800k manufacturing jobs, 23 straight months of sub-4% unemployment, surging consumer sentiment, wages outpacing inflation, the American Rescue Plan, Inflation Reduction Act, CHIPs Act, PACT Act, infrastructure law, gun safety law, VAWA, codified marriage equality, canceled $136 billion in student loan debt for 3.7 million borrowers, bolstered NATO, and presided over electoral wins in ‘20, ‘22 and ‘23….”

It may be, though, that the report has been a game changer in a different way than Hur intended it. Hur’s suggestion that Biden does not remember when his son died seems to echo the moment in the 1954 Army-McCarthy hearings in which Senator McCarthy was trying to prove that the U.S. Army had been infiltrated by Communists. Sensing himself losing, McCarthy attacked on national television a young aide of Joseph Nye Welch, the lawyer defending the Army.

“Have you no sense of decency, sir?” Welch demanded. “At long last, have you left no sense of decency?” McCarthy didn’t, but Americans did, and they finally threw him off the public stage.

Biden supporters took their gloves off today, producing videos of Trump’s incoherence, gaffes, and wandering off stages, and noting that he mistook writer E. Jean Carroll, whom he sexually assaulted, for his second wife, Marla Maples, when asked to identify Carroll in a photograph. They also produced clips of Fox News Channel personalities Sean Hannity and Jesse Watters messing up names themselves on screen, and gaffes from Republican lawmakers.

Senior communications advisor for the Biden-Harris campaign T.J. Ducklo released a statement lambasting Trump for a speech he gave tonight in Harrisburg, Pennsylvania, saying: “Tonight, he lied more than two dozen times, slurred his words, confused basic facts, and placated suingvthe gun lobby weeks after telling parents to ‘get over it’ after their kids were gunned down at school. But you won’t hear about any of it if you watch cable news, read this weekend’s papers, or watch the Sunday shows.”

But it was Biden who responded most powerfully. “There’s even a reference that I don’t remember when my son died,” he told reporters. “How in the hell dare he raise that…. I don’t need anyone to remind me when he passed away.” And when asked about Hur’s dismissal of him as a “well-meaning, elderly man with a poor memory,” Biden responded with justified anger: “I am well-meaning, and I’m an elderly man, and I know what the hell I’m doing. I’ve been President. I put this country back on its feet.”

Categories Bias, Biden, Elections, Trump

Ohio: Charters and Vouchers Defund the Public Schools

Ohio: After GOP Lifts Income Caps on Vouchers, Enrollments and Costs Soar

Yong Zhao: Why Doesn’t the U.S. Scrap PISA?

Robert Hubbell: Trump is Unfit to be President

Trump claims he told NATO ally he would welcome Russian attack.

Why it matters.

The reaction.

Trump mocks Nikki Haley’s husband, who is deployed with the National Guard in Africa.

Politico: Trump Says He Won’t Defend NATO Ally if It Hasn’t Paid Its Dues

Just Security: What the Hur Report Really Said vs. The Headlines

I. What the Hur Report Actually Found

I. What the Media Reported

Photo credit: Zach Gibson/Getty Images

Washington Post: Did Hur Violate DOJ Protocols?

The Inside Story: Biden Aides Who Attended Hur Interview Stunned by Report

Marcy Wheeler: Hur’s Witch Hunt Comes Up with Nothing

Heather Cox Richardson: Hur Report Was a “Political Hit Job”

Search All Posts

Previous posts

Recent posts

Top posts

Follow blog via email

Follow blog via RSS reader

Blog Stats

Trump claims he told NATO ally he would welcome Russian attack.

Why it matters.

The reaction.

Trump mocks Nikki Haley’s husband, who is deployed with the National Guard in Africa.

I. What the Hur Report Actually Found

I. What the Media Reported

Photo credit: Zach Gibson/Getty Images

Search All Posts

Previous posts

Recent posts

Blog Topics

Top posts

Follow blog via email

Follow blog via RSS reader

Blog Stats