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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.

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.

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.

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.

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.

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.”

Yair Rosenberg, a staff writer for The Atlantic, puts Biden’s latest gaffe into context.

On Sunday, Speaker of the House Mike Johnson went on television and mixed up Iran and Israel. “We passed the support for Iran many months ago,” he told Meet the Press, erroneously referring to an aid package for the Jewish state. Last night, the Fox News prime-time host Jesse Watters introduced South Dakota Governor Kristi Noem as hailing from South Carolina. I once joined a cable-news panel where one of the participants kept confusing then–Attorney General Jeff Sessions with Representative Pete Sessions of Texas. I don’t hold these errors against anyone, as they are some of the most common miscues made by people who talk for a living—and I’m sure my time will come.

Yesterday, President Joe Biden added another example to this list. In response to a question about Gaza, he referred to the Egyptian leader Abdel Fattah al-Sisi as the president of Mexico. The substance of Biden’s answer was perfectly cogent. The off-the-cuff response included geographic and policy details not just about Egypt, but about multiple Middle Eastern players that most Americans probably couldn’t even name. The president clearly knew whom and what he was talking about; he just slipped up the same way Johnson and so many others have. But the flub could not have come at a worse time. Because the press conference had been called to respond to Special Counsel Robert Hur’s report on Biden’s handling of classified documents, which dubbed the president an “elderly man with a poor memory,” the Mexico gaffe was immediately cast by critics as confirmation of Biden’s cognitive collapse.

But the truth is, mistakes like these are nothing new for Biden, who has been mixing up names and places for his entire political career. Back in 2008, he infamously introduced his running mate as “the next president of the United States, Barack America.” At the time, Biden’s well-known propensity for bizarre tangents, ahistorical riffs, and malapropisms compelled Slate to publish an entire column explaining “why Joe Biden’s gaffes don’t hurt him much.” The article included such gems as the time that then-Senator Biden told the journalist Katie Couric that “when the markets crashed in 1929, ‘Franklin Roosevelt got on the television and didn’t just talk about the princes of greed. He said, “Look, here’s what happened.”’” The only problem with this story, Slatelaconically noted, was that “FDR wasn’t president then, nor did television exist.”

In other words, even a cursory history of Biden’s bungling shows that he is the same person he has always been, just older and slower—a gaffe-prone, middling public speaker with above-average emotional intelligence and an instinct for legislative horse-trading. This is why Biden’s signature moments as a politician have been not set-piece speeches, but off-the-cuff encounters, such as when he knelt to engage elderly Holocaust survivors in Israel so they would not have to stand, and when he befriended a security guard in an elevator at The New York Times on his way to a meeting with the paper’s editorial board, which declined to endorse him. And it’s why Biden’s key accomplishments—such as the landmark climate-change provisions of the Inflation Reduction Act, the country’s first gun-control bill in decades, and the expected expansion of the child tax credit—have come through Congress. The president’s strength is not orating, but legislating; not inspiring a crowd, but connecting with individuals…

As Slate observed in 2008, the frequency of Biden’s rhetorical miscues helped neutralize them in the eyes of the public. In 2024, Biden will have an assist from another source: Donald Trump. Among other recent lapses, the former president has called Hungarian Prime Minister Viktor Orbán “the leader of Turkey,” confused Nancy Pelosi and Nikki Haley, and repeatedly expressed the strange belief that he won the 2020 election. With an opponent prone to vastly worse feats of viscous verbosity, Biden can’t help but look better by comparison, especially if he starts playing offense instead of defense…

The New York Times speculates that the U.S. Supreme Court is likely to forge a “grand bargain” in dealing with the legal travails of Trump: a win in the Colorado case, a loss in Trump’s claim of sbsolute immunity. That would be a good outcome, on balance, as there might be time for Trump to be tried in Judge Tanya Chutkan’s court before the election. That is, if the high court renders a speedy decision in the immunity case.

There’s every reason to expect or hope that the Supreme Court will refuse to hear the immunity case, the one where Trump claims that he is immune from any liability, civil or criminal, for actions that he took as president.

The District Court—Judge Chutkan—ruled against him. The Appeals Court wrote a unanimous, stinging critique of his claim.

The Times wrote that his victory in the Colorado case would be balanced by his loss in the immunity case.

Chief Justice John G. Roberts Jr. and his colleagues seemed ready on Thursday to start to rebuild the court’s reputation by presenting themselves as unified and apolitical.

He has had a bumpy ride of late, what with the leak of the decision overturning Roe v. Wade, an inconclusive investigation into that breach, a lonely concurrence in the decision itself and ethics scandals followed by a toothless code meant to address them.

All of this has contributed to dips in the Supreme Court’s approval ratings, as large segments of the public have increasingly viewed it as swayed by politics rather than committed to neutral principles and the rule of law.

Judging by the justices’ questions in arguments on Thursday over former President Donald J. Trump’s eligibility to hold office again, they will rule that Mr. Trump can remain on the primary ballot in Colorado and on other ballots around the nation — and by a lopsided, if not unanimous, vote.

But if the chief justice’s project of evenhanded nonpartisanship is to prevail, the court will have to rule against Mr. Trump in a separate case heading to the court, the one in which he claims absolute immunity from prosecution for his conduct leading up to and on Jan. 6, 2021.

Richard L. Hasen, a law professor at the University of California, Los Angeles, wrote in Slate that the outline of a “grand bargain” was coming into view.

“The Supreme Court unanimously, or nearly so, holds that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges,” he wrote.

Will the Trump trial happen before the election? That’s the question.

Attorney General Merrick Garland appointed Robert K. Hur as Special Counsel to investigate the documents that President Biden retained after he left office in early 2017.

Hur released his report, and he exonerated Biden of any criminal behavior.

But his report included scathing comments about Biden, disparaging his mental acuity.

Consider the disparate treatment of Biden and Trump. Biden promptly returned any documents; Trump resisted the government’s demand for his top secret, highly classified documents. Biden sat for a five-hour interview; Trump, to our knowledge, never submitted to an interview. So far as we know, Biden did not retain highly classified documents as Trump did.

So why the ad hominem comments that damage Biden politically?

Huffington Post did a quick summary of Robert Hur’s background.

Hur, a Republican, served as U.S. attorney of Maryland from 2018 to 2021, after being appointed by former President Donald Trump’s attorney general, Jeff Sessions. He previously clerked for two well-known conservative judges, including archconservative Supreme Court Justice William Rehnquist.

Hur left his U.S. attorney post in 2021 to become a partner at the D.C.-based law firm Gibson Dunn. He was there until last January, when Attorney General Merrick Garland tapped him to oversee the department’s probe into Biden’s alleged mishandling of classified materials.

“Mr. Hur has a long and distinguished career as a prosecutor,” Garland said when announcing Hur as his pick for special counsel. “I am confident that Mr. Hur will carry out his responsibility in an even-handed and urgent manner, and in accordance with the highest traditions of this Department.”

As Hur’s investigation of Biden began, he vowed to carry it out “with fair, impartial, and dispassionate judgment.”

“I intend to follow the facts swiftly and thoroughly, without fear or favor, and will honor the trust placed in me to perform this service,” he said at the time.

While Hur ultimately cleared Biden of any wrongdoing, he knocked the president’s mental acuity ― a detail that some Democrats said was extraneous, strange and unfair…

Hur’s mandate “was to judge whether a crime was committed… not speculate on what the jury would do, not to speculate on how full or sharp Joe Biden’s mind is,” Sen. Richard Blumenthal (D-Conn.) similarly said.

Prior to being U.S. attorney, Hur was an assistant U.S. attorney for Maryland for seven years. He also clerked for Rehnquist and for former Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Kozinski is perhaps best known for stepping down in disgrace in 2017 after more than a dozen former female law clerks and staffers accused him of sexual harassment and abuse.

Garland’s belief that Hur would carry out his assignment in an “even-handed” way “in accordance with the highest traditions” of the Justice Department was misplaced. Hur’s pledge that he would deliver a report that was “fair, impartial, and dispassionate” was untrue.

Garland wanted to demonstrate his integrity by choosing an investigator with sterling conservative credentials.

He would have been far wiser to have chosen a career prosecutor known for integrity and a nonpolitical history, never having been appointed by a Democrat or a Republican.

Sometimes bending over backwards to prove your own fairness can go to extremes.

Twenty-five of the nation’s leading historians submitted an amici curiae brief in support of the decision by Colorado’s Supreme Court to disqualify Donald Trump as a candidate for the Presidency. The signers are scholars of the Reconstruction era, when the Fourteenth Amendment was written. They address with admirable clarity the issues in the case.

The issue they did not address is the one the Supreme Court justices focused on: can one state remove a candidate from its ballot? Would this create incentive for Trump states to remove Biden? Would this lead to chaos, a Trump specialty?

This is the language at the center of the case:

Fourteenth Amendment Equal Protection and Other Rights

  • Section 3 Disqualification from Holding OfficeNo person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The lower court in Colorado ruled against disqualification on the grounds that the President of the United States is not “an officer” of the federal government. As it happens, the issue was discussed by members of Congress when they wrote Section 3 of the Fourteenth Amendment.

Some of Trump’s defenders claim that Congress never passed any enabling legislation. This issue was debated by Congress at the time.

The brief is interesting reading.