Last week, Republican Special Counsel Robert Hur released a report recommending no charges and no wrongdoing in President Biden’s document case. Despite acknowledging no crime was committed and no charges would be filed, Hur, who was appointed by Donald Trump to be the U. S. Attorney for Maryland in 2018, couldn’t miss the opportunity to take a gratuitous political punch at President Biden that would aid his political rivals. Legal commentators agree that the report is editorialized and gratuitous.
Special Counsel Hur is a lifelong Republican and MAGA Trump appointee who decided to hit the President politically, when it was clear to him he couldn’t hit him criminally. The Trump-appointed prosecutor pored over 40 years, desperately searching for a crime to charge the President with and couldn’t find one. He went outside of his job description and played politics. Hur put political games over impartial justice as part of the MAGA agenda to harm President Biden heading into the 2024 election and to help distract from Donald Trump’s two impeachments, 91 criminal indictments, and the insurrection he started.
Expert Commentary
Mark Lytle (Former Trump White House Lawyer): “I Think It’s Outrageous…Hur Is Acting Like Prosecutor, Judge And Jury.”
“I think it’s outrageous. Prosecutors are taught that the Department of Justice should speak through charges or it shouldn’t speak at all. I’m no fan of President Biden, but he’s not charged with a crime and now he’s out there having to defend himself. And how can he defend himself when there’s no jury or judge to decide whether those allegations are true? Hur is acting like prosecutor, judge and jury. And the other side of that coin is it gives Trump and other opponents of Biden all this ammo to argue against him.”
Ty Cobb (Former Trump White House Counsel): Portions of Hur’s Report “Gave Me Great Pause.”
“Some of [the examples] gave me great pause…I think it might have been better here to simply say that the president would have been a sympathetic defendant rather than go into the memory issues at the level that they did.”
Michael Luttig (Retired Bush-Appointed Federal Judge): “That’s About As Unseemly And An Abuse Of Power As I Can Imagine.”
“There’s considerable discussion in the 315 page report, which again, in my view, is an abuse of power, pure and simple. But he goes on at length about the incumbent president’s mental capacity in whatever context all towards the end of concluding that Joe Biden should not be prosecuted. That’s about as unseemly and an abuse of power as I can imagine.”
Renato Mariotti (Former U.S. Assistant Attorney): Hur’s Report Represented “Poor Judgement,” “Prosecutors Are Supposed To Be Fair.”
Mariotti reportedly said the commentary on President Biden’s memory in Hur’s report represented “poor judgement,” telling reporters, “Prosecutors are supposed to be fair in how they handle people they are investigating, and I don’t think he [Mr Hur] was here.”
Preet Bharara (Former U.S. Attorney for the Southern District of New York): “That Had No Place In This Document.”
“What I don’t think is correct—and I think the vast majority of legal experts agree with me—is the gratuitous, superfluous statements about his memory…That had no place in this document.”
Jeffrey Toobin (Former Assistant U.S. Attorney): “It Was Outrageous.”
“It was outrageous that Hur put in some of that stuff in this report. That had no place in it. … There is no reason this report had to be 300 pages. There is no reason this fairly straightforward case had to be treated this way. … The job of prosecutors is to put up or shut up.”
Andrew Weissman (Former FBI General Counsel): Hur’s Report Is A “Gratuitous Political Swipe.”
“Of course, no crime was committed by Biden, but as anticipated, Hur takes the opportunity to make a gratuitous political swipe at Biden.”
Allan Lichtman (Presidential Historian and Professor at American University): “It Is Totally Inappropriate. If This Had Been Done To Any Ordinary Citizen, You Know There Would Be Howls Of Outrage.”
“I have to say this report from the special counsel was a disgrace. If you’re not charging someone, you don’t attack them with your personal opinions, your views, your innuendo. James Comey was roundly and rightly condemned for doing this back in 2016 … and now we’ve seen the same thing from Mr. Hur and it is totally Inappropriate. If this had been done to any ordinary citizen, you know there would be howls of outrage.”
Jamie Gorelick (Deputy Attorney General under President Bill Clinton): Hur “Could Have Listed His Reasons For Not Recommending A Charge Or Not Charging Without That Kind Of Gratuitous Slam.”
“The language that Hur used, I thought, was remarkable and unfortunate. I think he could have listed his reasons for not recommending a charge or not charging without that kind of gratuitous slam.”
Barbara McQuade (University of Michigan Law School Law Professor & Former Federal Prosecutor): “To Instead Besmirch His Reputation Struck Me As Going A Bit Above And Beyond What You Would Expect From An Ordinary Prosecutor.”
“‘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.’”
Matthew Seligman (Legal Scholar at Stanford Law School’s Constitutional Law Center): “All He Should Have Written Is That There Is Insufficient Evidence…”
“What Hur should have written — and all he should have written — is that there is insufficient evidence to prove beyond a reasonable doubt that President Biden’s level of intent rose to the willfulness standard required by the statute.”
Mimi Rocah (Former Assistant U.S. Attorney): “Totally Gratuitous.”
“Once Hur said ‘the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt,’ he should have stopped. Why is he opining on Biden’s mental state now or in 2024 or 2029? His memory now & those years isn’t relevant to his intent at the time of the crime being investigated. Totally gratuitous.”
Eric Holder (Former U.S. Attorney General): Hur’s Report “Is Flatly Inconsistent With Long Standing DOJ Traditions.”
“Special Counsel Hur report on Biden classified documents issues contains way too many gratuitous remarks and is flatly inconsistent with long standing DOJ traditions. Had this report been subject to a normal DOJ review these remarks would undoubtedly have been excised.”
Op-Eds & Editorials
New York Daily News Editorial Board: Cleared And Smeared: Document Case Special Counsel Finds No Crime By Biden But Punishes Him Anyway.
- “In what was clearly the most personally insulting — and perhaps damning — detail, Hur notes that Biden ‘did not remember, even within several years,’ the date that his son Beau died. […] That’s not all. Notes like the one that ‘Mr. Biden has long viewed himself as a historic figure’ come across as gratuitous and snide. […] Editorializing is well and good for an editorial page like ours to engage in. A special counsel ought not make such pronouncements; he should deliver a just-the-facts summary of the case at hand, bringing charges or not.”
Shan Wu, The Daily Beast (Opinion): Special Counsel Robert Hur’s Report on Biden’s Classified Documents Is Partisan and Unprofessional.
- “The bottom line is that Hur has produced a report that should have reassured the American people that President Biden did nothing wrong, but instead supplies Biden’s political rivals with ammunition for baseless attacks on Biden’s fitness for office. Hur opens his report in a way that invites misinterpretation, by stating he ‘uncovered evidence that President Biden willfully retained and disclosed classified materials.’ But Hur waits until the next paragraph to state that the evidence does not establish Biden’s guilt beyond a reasonable doubt. The verb ‘uncovered’ suggests evidence was hidden and only Hur’s skillful investigation discovered it. Nothing could be further from the truth, as the rest of the report demonstrates that President Biden hid nothing from the investigation and was entirely forthcoming.
- Hur’s wording also makes it sound like he believes Biden committed a crime, but he just can’t prove it when his report actually concludes there is a lack of evidence of Biden possessing criminal intent to commit a crime. A report explaining the reasons for declination should be written in a very factual, non-pejorative way. Hur should have simply said that the evidence found in the investigation did not support a recommendation of criminal prosecution, and then gone on to explain what evidence had been evaluated. Again, maybe Hur’s just a lousy writer. But an examination of his analysis belies that benign interpretation.”
Ruth Marcus, The Washington Post (Opinion): The Biden Special Counsel’s Egregious Abuse Of Power.
- “[S]pecial counsel Robert K. Hur made the right choice in concluding that criminal charges are not warranted and in distinguishing Biden’s treatment of classified material from that of former president Donald Trump. The same cannot be said of Hur’s depiction of what he presented as Biden’s enfeebled cognitive condition, ‘a well-meaning, elderly man with a poor memory.’ The report’s extensive discussions of that issue were not merely gratuitous — they constituted an egregious transgression of prosecutorial boundaries.
- But Hur isn’t just a run-of-the-mill Republican — he served as top deputy to Deputy Attorney General Rod J. Rosenstein before becoming U.S. attorney for Maryland. As the Biden special counsel, he chose for his own top deputy another former Trump U.S. attorney, Marc Krickbaum..
- Prosecutors are supposed to remain above the partisan fray, not embroiled in it. Sometimes such spillover is inevitable. But a responsible prosecutor would have taken care to avoid what Hur has done, which is to let his report become a potent — perhaps even lethal — weapon in the coming campaign.”
Jennifer Rubin, The Washington Post (Opinion): Hur’s Political Hatchet Job. Garland’s Blunder. Media Complicity.
- “But it was Hur’s gratuitous smear about Biden’s age and memory — most egregiously, his far-fetched allegation that Biden could not recall the date of his son Beau’s death — that transformed a snide report into a political screed. Speculating about how a jury might have perceived the president years after the incidents took place was entirely irrelevant because the lack of evidence meant there would be no case. Former prosecutors were almost uniformly outraged.
Molly Jong-Fast, MSNBC (Opinion): Comey Helped Make Trump President. The Hur Report Follows The Same Playbook.
- “Hur, a member of a Republican Party that now largely works as a campaign arm for the former president, delivered the goods for his party. Sure, he found no legal basis to charge Biden, but but but… Hur proceeded to editorialize ad nauseam about Biden’s mental acuity, delivering right-wing talking points up on a platter. He wrote, ‘[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’s report was a partisan hit job, but it didn’t matter, as former Obama chief of staff Jim Messina tweeted: ‘Let’s be clear — the special counsel isn’t a dummy and we should be very careful not to take the bait after Comey pulled this in 2016. Hur, a lifelong Republican and creature of DC, didn’t have a case against Biden, but he knew exactly how his swipes could hurt Biden politically.’”
Austin Sarat, Justia Verdict (Opinion): Robert Hur’s Report on Biden Shows How Ageism Works.
- “Yet it is impossible not to notice the ugliness of that prejudice in the pages of special counsel Robert Hur’s report of his investigation of Joe Biden’s handling of classified documents. That report went out of its way to highlight seemingly age-related problems that manifested themselves during Hur’s interviews with the President, problems that had little to do with what the special counsel was charged to investigate.
- The ageism of Hur’s report plays to those concerns. Age prejudice leads this society to waste, as Mauro Guillen says, ‘the talents of many people above the age of 60, 70, or 80 because we unjustifiably deem them not capable of performing a job or any job…. As human beings, we start to decline from a cognitive point of view when we are in our late twenties. But, typically, experience more than compensates for cognitive decline.’ Biden’s record in office demonstrates that fact. He may sometimes forget, or confuse, names or dates, but as a memo written last year by Biden’s doctor flatly states, the President is a ‘healthy, vigorous, 80-year-old male, who is fit to successfully execute duties of the presidency. ‘That is what matters, not the ageism of Hur’s report.”
Andrew Weissmann & Ryan Goodman, Just Security: The Real “Robert Hur Report” (Versus What You Read in the News).
- “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).
- [T]he 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.
- 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.”
Articles
USA Today: Special Counsel Robert Hur Biden Report Crossed Line, Prosecutors Say.
- “Did Special Counsel Robert Hur cross the line when he attacked President Joe Biden’s mental acuity in a report that was supposed to be about the mishandling of classified documents? Former prosecutors − even some Republicans − say he did that and more.
- Some Republicans did too, saying Hur went overboard with his description of Biden’s performance during an interview with prosecutors.”
BBC: Prosecutor Faces Political Glare After Biden Report.
- “Some former federal prosecutors and attorneys told the BBC that it was not typical for prosecutors to include highly personal details in these kinds of cases.
- Some experts told the BBC that some of these details – especially the references to his son’s death – were not strictly necessary.
- The experts who spoke to the BBC mostly agreed that special counsels are usually aware of the political reaction their report could ignite, though it should not change any findings. That may have been no more true than for Mr Hur, who released the findings of this investigation just nine months before November’s presidential election. Mr Biden is running for a second term.”
The Wall Street Journal: Special Counsel Expected Heat for Biden Inquiry. His Report Sparked a Political Inferno.
- “Still others said the tone, at times patronizing and disdainful, went beyond a reasoned explanation of his decision and strayed into the kind of criticism one would expect from a political opponent.“