Special Prosecutor Robert Hur’s report, dated February 5, 2024, states clearly on its first page, that “[o]ur investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” However, “we conclude that the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt… we decline prosecution of Mr. Biden.”
There are a variety of legal considerations for the non-prosecution decision addressed in the Hur Report that deserve further analysis. However, the most glaring reason for the recommendation is today’s topic; “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. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. 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 does not deny that there is evidence for Biden’s willful retention of classified documents. In Chapter 11 of his Report, Hur states that “[i]n a recorded conversation on February 16, 2017, at Mr. Biden’s rental home in Virginia, Mr. Biden told Mark Zwonitzer (a writer working with Biden) that Mr. Biden had ‘just found all the classified stuff downstairs.’ According to what Mr. Biden told Zwonitzer, ‘all the classified stuff’ related to President Obama’s 2009 decision to surge American troops to Afghanistan, and to a pivotal moment when Mr. Biden sent President Obama his handwritten Thanksgiving memo opposing the troop surge. Photos of the Virginia home show that the lowest level ‘downstairs’-where Mr. Biden told Zwonitzer he had ‘just found all the classified stuff’-included rooms that Mr. Biden used as work and storage spaces.” (Citations omitted.)
Hur finds that “Mr. Biden had a strong motive to keep the classified Afghanistan documents. He believed President Obama’s 2009 troop surge was a mistake on par with Vietnam. He wanted the record to show that he was right about Afghanistan; that his critics were wrong; and that he had opposed President Obama’s mistaken decision forcefully when it was made-that his judgment was sound when it mattered most.” (Citations omitted.)
“Nevertheless,” Hur concludes, “for the reasons below, we believe this evidence is not strong enough to establish Mr. Biden’s guilt beyond a reasonable doubt.”
Hur then examines in detail a series of defenses Biden could assert, including, incredibly, “Mr. Biden could have found the classified Afghanistan documents at the Virginia home in 2017 and then forgotten about them soon after.”
In 30 years of legal practice, I do not recall a single case where a defendant was able to win an acquittal by claiming he had forgotten he was breaking the law. But maybe Robert Hur’s experience is different.
In support of the “forgot about it” defense, Hur details his basis for believing this potential defense: “Mr. Biden’s memory also appeared to have significant limitations-both at the time he spoke to Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries. In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 – when did I stop being Vice President?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still Vice President?’). He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he ‘had a real difference’ of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.”
In other words, it’s perfectly reasonable to expect that someone who can’t remember when he was Vice President, or when his own son died, would not remember that he was storing classified documents that had once been important enough for Biden to maintain in his possession.
Biden himself, as well as his supporters, have been vociferous in their complaints regarding this particular finding. At a Press Conference held immediately after the release of the Hur Report, “a reporter who raised the issue of Hur’s assertion a jury would find the president to be a ‘well-meaning, elderly man with a poor memory,’ Mr. Biden responded, ‘I’m well-meaning and I’m an elderly man and I know what the hell I’m doing. I’ve been president and I put this country back on its feet. I don’t need his recommendation.’ Mr. Biden said his memory is ‘fine,’ and ‘has not gotten worse’ over the course of his presidency.” Yet, during that same Press Conference, Biden mixed up the President of Egypt with the President of Mexico, and could not recall the name of the Church where he got a rosary in honor of his son, Beau. These memory lapses were particularly poignant, as it came while Biden was defending his ability to remember.
According to former US Attorney General Eric Holder, “Special Counsel Hur report on Biden classified documents issues contains way too many gratuitous remarks and is flatly inconsistent with long standing [Justice Department] traditions,” an assessment echoed by Neal Katyal, a former acting solicitor general during the Obama administration, who said, “Totally gratuitous. After all, earlier in the report, it says Biden has all sorts of innocent explanations for his behavior.” Yet, Hur’s findings are hardly extraneous or gratuitous – they serve as an explanation for why a jury might not believe that Joe Biden “willingly” retained classified information. A weak explanation for a very anemic defense, but an explanation nonetheless.
All of this might be forgivable and almost comical on a particular level – if the man with significant memory loss was not the current President of the United States.
“I’ve been saying since he was candidate Joe Biden: This man does not have the cognitive wherewithal or ability to be our head of state,” according to “Rep. Ronny Jackson (R-Texas), a physician to both former Presidents Barack Obama and Donald Trump and a member of the White House Medical Unit under President George W. Bush…’I’m not making a diagnosis. And I’m not saying the guy has Alzheimer’s or multi-infarct dementia or Parkinson’s or anything else,’ he clarified. ‘This guy has cognitive issues related to his age: He shuffles when he walks, he slurs his speech, he forgets where he’s at, what he’s doing, he can’t remember names, he can’t remember dates – that is not someone that should be in control of the nuclear codes in this country and controlling our fate overseas.'”
To date, Joe Biden has rejected all calls for cognitive testing. But make no mistake – this remains a significant issue, of great concern to the majority of voters regardless of their party affiliation.
As noted by NBC News, “[i]t was tough enough for Biden to reassure voters about his health before Hur’s report hit like a thunderclap…prompting members of his own party to question whether he could remain the nominee in November. ‘It’s a nightmare,’ said a Democratic House member who asked to speak anonymously to provide a frank assessment, adding that ‘it weakens President Biden electorally…[f]or Democrats, we’re in a grim situation.’”
Judge John Wilson (ret.) served on the bench in NYC