Biden ‘An Elderly Man with a Poor Memory’
A special counsel has declined to prosecute the President but his rationale was painful.
WaPo (“Special counsel: No charges for Biden in classified documents probe“):
Joe Biden carelessly kept classified documents and notebooks at his home, according to a special counsel report released Thursday that said the evidence wasn’t strong enough to charge the president with crimes. The report’s description of Biden as “an elderly man with a poor memory” prompted a furious response from the president at a hastily called news conference hours later.
The 345-page special counsel report portrays Biden, 81, as someone who haphazardly kept notebooks and documents with classified information at his home, and struggled to recall key dates in his life. Republicans quickly seized on that stinging characterization to attack the Democratic incumbent as unfit for office.
Special counsel Robert K. Hur’s report also said Biden could not remember the year in which his son Beau died of cancer.
“How in the hell dare he raise that,” a furious president said to reporters summoned to the White House on Thursday evening. “It wasn’t any of their damn business. … I don’t need anyone to remind me when he passed away.”
In an exchange with reporters that veered from questions about possible national security crimes to the president’s mental faculties to the ongoing U.S. response to the war in the Middle East, Biden insisted he never improperly shared classified information with anyone and was fit to be president and run for reelection.
“I know what the hell I’m doing,” he declared.
Hur,who interviewed the president at the White House himself, found evidence that Biden “willfully retained and disclosed classified materials to his ghost writer after his vice presidency when he was a private citizen.” The special counsel concluded, however, that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.” At the news conference, Biden denied disclosing restricted information, saying he was careful to skip over any sensitive material when sharing his notes.
Prosecuting Biden would be “unwarranted” based on a number of factors that would make it difficult to prove beyond a reasonable doubt that he intended to break the law, Hur’s report concluded.
Among the issues examined by investigators was why Biden first told his ghostwriter that he had classified information in his possession back in 2017 but didn’t report it to authorities.
Ultimately, the report said a jury would find Biden to be a sympathetic figure and “a well-meaning, elderly man with a poor memory.” Prosecutors also suggested it might not have struck Biden as noteworthy that he was in possession of classified documents so soon after his term as vice president had ended.
Hur’s report said 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’s team wrote Biden’s case was far different from that of former president Donald Trump, who is being prosecuted for retaining classified documents — including that Biden promptly returned the documents when asked, while Trump declined multiple opportunities to do so.
Richard Sauber, a lawyer for Biden on the documents case, said he was pleased the investigation has ended without charges, emphasizing in a statement that the president “fully cooperated from day one.” Sauber said every administration ends with packing mistakes involving documents, and Biden’s was no different.
Sauber went on, however, to criticize Hur for “a number of inaccurate and inappropriate comments” in the report. “Nonetheless, the most important decision the Special Counsel made — that no charges are warranted — is firmly based on the facts and evidence,” he said.
In a response included in the report, Sauber said, “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”
The special counsel team conducted 173 interviews with 147 witnesses, including Biden, and collected millions of documents to compile the report. They said Biden cooperated with investigators and consented to multiple searches of his properties.
In an “analysis” piece (“Special Counsel’s Report Puts Biden’s Age and Memory in the Spotlight“), NYT White House correspondent Michael D. Shear observes,
The decision on Thursday not to file criminal charges against President Biden for mishandling classified documents should have been an unequivocal legal exoneration.
Instead, it was a political disaster.
The investigation into Mr. Biden’s handling of the documents after being vice president concluded that he was a “well-meaning, elderly man with a poor memory” and had “diminished faculties in advancing age” — such startling assertions that they prompted a fiery and emotional attempt at political damage control from the president within hours.
The president’s remarkable appearance before reporters underscored the political damage that Mr. Hur’s report could do despite the lack of criminal charges. The report’s discussion of the president’s memory and age was repeated throughout the 345-page document, and was quickly seized on by Republicans, including Mr. Biden’s likely opponent in the 2024 election, former President Donald J. Trump.
In the report, Mr. Hur said the memory of the then-80-year-old president was so hazy during five hours of interviews over two days that it would be difficult to convince jurors that Mr. Biden knew his handling of the documents was wrong. Mr. Hur predicted in the report that if the president were charged, his lawyers “would emphasize these limitations in his recall.”
In his own written statement issued just after the report became public, Mr. Biden appeared to suggest a reason for why he was distracted.
“I was so determined to give the special counsel what they needed that I went forward with five hours of in-person interviews over two days on Oct. 8 and 9 of last year, even though Israel had just been attacked on Oct. 7 and I was in the middle of handling an international crisis,” he wrote. “I just believed that’s what I owed the American people.”
Concerns about Mr. Biden’s age have been a recurring theme of his presidency over the past three years. Fueled in part by video of the president appearing weak or stumbling in public, many voters have expressed concern about his mental and physical fitness as he seeks to remain in the White House until he is 86 years old.
During fund-raisers on Wednesday, Mr. Biden twice recalled a 2021 conversation with Helmut Kohl, the onetime German chancellor, who died in 2017. His spokeswoman later said he misspoke, as many public officials do. In his remarks on Thursday evening, Mr. Biden confused the presidents of Mexico and Egypt, making exactly the kind of mistake that his staff would have wanted him to avoid at a time when his mental acuity is being questioned.
On Thursday, he angrily disputed the suggestion that he was not fit to serve. Asked about polls showing that the American people have concerns about his age, he pointed at the reporter and said: “That is your judgment. That is your judgment.”
He then added: “That is not the judgment of the press,” though he appeared to mean it was not the judgment of the public. Asked why he should not step aside and let someone else in his party be the Democratic nominee, he said, “Because I’m the most qualified person in this country to be president of the United States and finish the job I started.”
The POLITICO Playbook gang piles on, calling it “A day Biden world wishes it could forget.”
“It felt like a Comey moment for me.”
That was the assessment of a top Biden campaign official watching special counsel ROBERT HUR’s report explode yesterday.
In July 2016, FBI Director JAMES COMEY ripped into HILLARY CLINTON for being “extremely careless” with classified material and noted that there was “evidence of potential violations” of the law. Then he delivered the actual news: “no reasonable prosecutor would bring such a case.” In a scathing report, the DOJ’s inspector general later harshly criticized Comey for his actions.
Like Comey, the Biden official argued, Hur put his “thumb on the scale during an election season.”
Biden’s lawyers raised the C-word with Hur even before the report became public. Why, they demanded, had Hur called Biden “totally irresponsible,” the same words Biden used to criticize Trump’s retention of classified documents, when in other parts of the report they took pains to note the differences between the two cases? Biden’s lawyers invoked the IG’s Comey report in arguing that “totally irresponsible” was the new “extremely careless.” They said Hur’s “criticism of an uncharged party violates” DOJ protocols. (Former Attorney General ERIC HOLDER seems to agree.)
But the real peril in the report was the one highlighted by Biden’s lawyers in two pages of forceful language that laid out their shock and indignation at Hur’s repeated criticisms of Biden’s memory — an issue that, given voters concerns about the president’s age, is central to the 2024 election but seemed gratuitous in Hur’s report.
They highlight some of the specific allegations in the report:
- Page 9: “Mr. Biden’s memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023.”
- Page 208: “Mr. Biden’s memory also appeared to have significant limitations … Mr. Biden’s recorded conversations with [ghostwriter MARK] 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?’).”
- Page 247: “For these jurors, Mr. Biden’s apparent lapses and failures in February and April will likely appear consistent with the diminished faculties and faulty memory he showed in Zwonitzer’s interview recordings and in our interview of him.”
Naturally, Biden and his team are firing back. But, by most accounts, Biden’s impromptu press conference reinforced the negative perceptions he was trying to rebut;
The report was released as Biden was attending the House Democratic retreat in Virginia. The president vented about the Beau line privately during a small meet-and-greet with House Minority Leader HAKEEM JEFFRIES, Democratic Caucus Chair PETE AGUILAR and party leaders (“You think I would fucking forget the day my son died?” he said, according to the AP).
He repeated a version of the line without the F-bomb during a Q&A with a larger group of House Dems. And, according to a source familiar with the planning for the hastily arranged news conference last night, Biden was angry and defiant and still feeling especially outraged by the Beau line when he decided to face reporters and defend himself from Hur’s slurs — and then compounded the questions about his memory issues by referring to Egyptian President ABDEL FATTAH EL-SISI as the “president of Mexico.”
The view from Biden world is that Hur’s gratuitous editorializing was driven by two factors:
- Partisanship: “We have to remind people that this is a MAGA guy,” said the campaign official.
- Pride: Hur had failed to find indictable conduct.
“The prevailing feeling is that they poured all these resources into investigating — and we were very cooperative — and he’s the only special counsel investigation that’s ever not led to charges,” said one Democratic defender of the president. “And I think that there’s probably some frustration around that that led to this over-torquing: ‘So let me just shit on [Biden] about memory!’ And also crossing a line that very few people would ever think about crossing when it comes to Beau.”
If Biden world seems defensive, it’s because they know Hur hit on an issue that the campaign has no real way to combat with ads or fancy strategy.
“The fact that he’s a senior citizen is not going to go away,” the Biden campaign official told Playbook. “What I’ve said to my colleagues is that we all have to remind the American people that sometimes we forget shit.”
Josh Marshall buys the MAGA line:
First off, this is another example of the universal rule: Republican special counsels are chosen to investigate Democrats. And Republican special counsels are chosen to investigate Republicans. It may not have been a great idea for Merrick Garland to have a two-time Trump appointee investigate Joe Biden. But here we are. Robert Hur totally slimed Biden with these gratuitous comments about his mental acuity and memory, referring to him as a “well-meaning, elderly man with a poor memory.” Even if you assume they are the product of a good faith evaluation they are still wildly inappropriate.
DOJ guidelines make clear that if you’re not bringing charges you don’t bash the subject of the investigation in your announcement (a la James Comey). You certainly aren’t supposed to affirmatively attempt to demean the subject of the investigation with clearly political attacks that aren’t even related to what you’re investigating.
The descriptions in the report sound bad because they are designed to sound bad. These are from a five hour discussion the day after the October 7th attacks on Israel when I’m sure Biden was focused on that unfolding crisis. Without watching the interview we have no way of knowing whether these are representative of the tenor of the conversation or cherry-picked gotchas.
But there’s no crying in baseball. Entirely justified outrage from Biden supporters won’t counter whatever damage these comments will have. The White House will need to get Biden in front of interviewers, where he actually does quite well, and in widely seen venues, to counter it. It’s really as simple as that.
Because I was sure from the outset that Biden was not going to be prosecuted—even if DOJ didn’t have a standing policy against prosecuting sitting Presidents, we simply hold people in very high positions of responsibility to different standards—I have paid little attention to this case since the initial spate of media reports. Further, I have maintained from the outset that Biden’s handling of classified documents is simply wildly different from Trump’s, with the latter deserving of prosecution.
I don’t have a strong opinion of Hur. He’s clearly quite conservative, having clerked for the late Chief Justice William Rehnquist and been appointed a U.S. Attorney by Trump’s attorney general, Jeff Sessions. But, like it or not, Biden’s attorney general, Merrick Garland, appointed him to this role, declaring,
Mr. Hur has a long and distinguished career as a prosecutor. In 2003, he joined the Department’s Criminal Division, where he worked on counterterrorism, corporate fraud, and appellate matters. From 2007 until 2014, Mr. Hur served as an Assistant U.S. Attorney for the District of Maryland, where he prosecuted matters ranging from violent crime to financial fraud. In 2017, Mr. Hur rejoined the Department as the Principal Associate Deputy Attorney General. In 2018, he was nominated and confirmed to serve as the U.S. Attorney for the District of Maryland. As U.S. Attorney, he supervised some of the Department’s more important national security, public corruption, and other high-profile matters.
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.
I concur with Marshall that the tone of the comments about Biden’s mental fitness was problematic. In particular, citing Biden’s inability to recall the date his son died strikes me as gratuitously hurtful. Even aside from DOJ policy, it’s simply distasteful for prosecutors to besmirch the reputations of citizens whom they have decided not to prosecute.
At the same time, it’s arguable that Biden’s forgetfulness was actually germane to the prosecutorial decision. If he genuinely didn’t comprehend that he had classified documents, it’s rather difficult to establish one of the elements of the crime under consideration.
Regardless, the comments reinforce the biggest obstacle to his re-election: the public perception that he’s just too damn old to serve another four years in such a highly stressful, demanding job. And, fair or not, his instances of stumbling in the press conference defending himself against that charge was not helpful.
My perception of them, from reading some social media reaction from pro-Biden folks, was that they were a disaster. Watching the event itself, though, does not give me that impression.
Biden’s articulation is not what it was a decade ago but he’s clearly in command of the facts. But most people aren’t going to sit through 13 minutes to watch it in full. They’ll see the clips of the stumbles.
All that said, I’m not sure how much any of this will matter. This is a re-run of the 2020 race and it’s difficult to imagine two politicians about whom Americans have more fixed opinions. Who it is that, until yesterday evening, thought Biden was fit to be President but changed their mind after seeing him mix up Mexico and Egypt?