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

By dianeravitch
February 11, 2024 //
16

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 //
23

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 //
17

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 //
54

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

The Atlantic: Biden’s Gaffes Are Not What You Think

By dianeravitch
February 10, 2024 //
19

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…

Categories Biden, Elections

New Hampshire: Republican Legislators Want to Lift Income Caps for Vouchers

By dianeravitch
February 10, 2024 //
3

Garry Rayno has been covering New Hampshire politics for decades. He writes in InDepthNH with a sense of astonishment about the Legislature’s eagerness to remove the income limits on the state’s recently enacted vouchers, noting that vouchers (called “Education Freedom Accounts”) are claimed mostly by families whose kids never attended public schools and that vouchers are likely to bust the state’s budget. The state’s education commissioner Frank Edelblut homeschooled his children, and he seems to view public schools with contempt. He was appointed by Governor Chris Sununu.

He writes:

…Two of the three bills would either remove any income cap or have a list of situations that automatically would qualify a student for the program, making both bills about universal vouchers with no limits on parents’ income.

The first year of New Hampshire’s EFA program, the income limit was 300 percent of federal poverty, and that was increased last session to 350 percent.

House Bill 1665 would increase the income cap to 500 percent of poverty or over $150,000 for a family of four, which is just over the state’s median income, which means slightly more than half the families in the state would qualify.

And yes the greatest use of the EFA program money continues to be for tuition at private and religious schools and homeschool programs for kids who were not in public schools when the EFA program began in 2021.

House Bill 1634 would remove any income cap from the program and House Bill 1561 has nine categories with automatic eligibility, which together, provide parents with an opportunity to successfully find a reason to have their student or students qualify.

Reaching Higher NH estimates if all the students in private or religious schools or homeschools qualify for an EFA, it would cost the state about $105 million, which is a far cry from the $300,000 Education Commissioner Frank Edelblut claimed would be the first year cost of the program.

But his estimate was much less than the real cost — $8 million — the first year, and $15 million the second year and as estimated $25 million this school year.

That is money that comes from the Education Trust Fund which is used for the adequacy grants to all school districts and charter schools, special education costs, building aid and transportation.

The fund currently has a $200 million surplus but that won’t last long if the program balloons to over $100 million a year…

To date about half the states have a voucher program of some kind, most not universal or as expansive as New Hampshire’s. A handful of states have universal programs.

If you wonder what can happen with these programs when they become universal, look at Arizona.

The state’s first school voucher plan using money that would have gone to public schools — like New Hampshire’s does — began in 2011.

A proposition for a universal plan was defeated by voters in 2018, but the Republican controlled Legislature approved a universal plan in 2022 and it was signed by then outgoing Gov. Doug Doucey.

Newly elected Democratic Gov. and former Secretary of State Katie Hobbs, tried to do away with the universal plan her first year in office, but was blocked by the Republican legislature. This year she wants some guardrails and transparency for the program, but the legislature is not likely to agree.

The Empowerment Scholarship Accounts program costs the state $1 billion annually and is the biggest driver in the state’s growing budget deficit of $400 million.

Criticism of the program includes using the state money for ski passes, piano purchases and other “luxuries.”

When the program expanded, about 75 percent of the new students were never public school students, much like New Hampshire’s experience.

Another universal program is in Florida where Gov. Ron DeSantis pushed through expanding their voucher program to universal last year as he prepared to run for the GOP nomination for president.

Among the complaints after the universal program began, ironically, was state money was used for tickets to Disney World.

Idaho and Utah also have universal programs and Indiana’s covers 97 percent of the state’s students.

Most states limit eligibility for the program to less than 300 percent so currently New Hampshire is more generous than any state that does not have universal voucher programs.

For example, Maryland limits participants to185 percent, North Carolina 133 percent, Ohio 200 percent, and South Carolina to Medicaid recipients.

There are several other bills dealing with the EFA program that will come before the Legislature this year including two that would allow any student turned down for a hardship placement in another school district would automatically qualify for the EFA program the next year.

Another bill takes aim at the organization that administers the EFA program. It would require the Children’s Scholarship Fund to establish an affiliate in New Hampshire as it has in every other state where it runs their voucher programs.

This push to move money out of public education and into private entities is not unique to New Hampshire.

The last several years, many states have had bills similar to the one that made it through New Hampshire in the 2021-2022 biennial budget, as it had trouble standing on its own.

There is a great deal of dark money behind this push coming from familiar places like the Devos and the Koch Foundation and it is not all about the quality of education as they would like you to believe.

One of the last healthy bastions of unionized labor is teacher unions and many involved in the push for school choice want to see that change.

There is one bill in the Senate and one in the House that would establish the position of part-time teacher, someone who works less than 30 hours a week and does not need Department of Education credentials.

The war on public institutions is not always what it appears to be, but you can be assured at the heart of it is big money, taxes and small government.

Categories Accountability, Budget Cuts, Education Industry, Funding, New Hampshire, Vouchers

The Supreme Court and Trump: Is a “Grand Bargain” in the Wings?

By dianeravitch
February 9, 2024 //
56

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.

Categories Accountability, Democracy, Elections, Extremism, Justice, Trump

Who Is Robert K. Hur?

By dianeravitch
February 9, 2024 //
183

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.

Categories Accountability, Elections, Ethics, Justice

What 25 Eminent Historians Told the Supreme Court About the Intent of the Founders Who Wrote Amendment 14, Section 3

By dianeravitch
February 9, 2024 //
35

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.

Categories Civil Rights, Democracy, Elections, Ethics, Extremism, History, Justice, Trump
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