Perhaps someday Democrats will learn their lesson but I'm not holding out much hope at this point. They suffer from an inexplicable habit of allowing only Republicans to hold the job of a special prosecutor. This has been going on for decades now and the results have been predictable each time.
For Democrats, the idea is to prove how noble and non-partisan they are in comparison to the hacks on the GOP side but it just ends up coming back to bite them in the end. The habit goes back to Watergate after President Richard Nixon fired special prosecutor Archibald Cox, a Democrat, in the Saturday Night Massacre. Nixon had Cox replaced with one of his supporters, Texas Judge Leon Jaworski, whom everyone assumed would be sympathetic to the president. As it turned out, Jaworski was appalled by what he saw and issued subpoenas for Nixon's White House tapes, a case that eventually wound up in the Supreme Court. However, it was later revealed that Jaworski didn't agree with the Grand Jury's recommendation to criminally indict the president and resigned from the job just as the cover-up trials began. As we know, it all became moot when President Gerald Ford pardoned Nixon.
When the Reagan White House came under investigation for the Iran-Contra Affair, a Republican judge named Lawrence Walsh was appointed by a three-judge panel under the new independent counsel statute. Walsh was a pretty zealous prosecutor and uncovered quite a bit of dirt but in the end, he was thwarted by President George H. W. Bush and his Attorney General William Barr, who pardoned all the possible defendants just before Bush left office in 1992. Funny how that worked out for Republicans again.
During the Clinton years, Attorney General Janet Reno named Republican Robert Fiske as special prosecutor to investigate the Whitewater scandal and he was later replaced in the job by ultra conservative Republican judge Kenneth Starr after Clinton himself signed the reauthorization of the Independent Counsel Act giving a three-judge panel of right-wing partisans the ability to assign one of their cronies.
I'll never forget when Newt Gingrich and the House Republicans put the Starr Report, sight unseen, on the internet only to find out that it was a downright pornographic romance novel (partly written by the man who became Supreme Court Justice Brett Kavanaugh) which had as much resemblance to a legal document as a grocery store receipt. It ushered in a new era in right-wing hit jobs that ended up backfiring on the Republicans but not before causing massive damage to the lives and reputations of dozens of people.
Fast forward to 2016 and the Russia Investigation, headed by yet another Republican, former FBI Director Robert Mueller. The GOP Department of Justice knew it wouldn't be right to have a Democrat investigate a Republican president. Why they might be partisan!
Special prosecutor is a Republican job, no matter what. Until the appointment of Jack Smith, who has been assiduously apolitical during his career, there has never been anything but Republicans in the job since Archibald Cox and it's a problem.
I bring this up because yesterday the special prosecutor assigned to investigate whether President Joe Biden committed any crimes by retaining some classified documents from his time as a senator and vice president announced that he was declining to prosecute for lack of evidence that Biden had willfully taken them or obstructed the investigation, as Donald Trump had done. Like former vice president Mike Pence, it appears that Biden unknowingly took some classified documents when he left office, which is apparently not all that uncommon. What is uncommon is for someone to try to hide them from the authorities and refuse to give them back as Trump has been indicted for doing.
But special prosecutor Robert Hur is a Republican, Trump-appointed Justice Department holdover who, once again, was appointed by a Democratic attorney general in order to prove just how "nonpartisan" the department is. So Hur wrote a voluminous 388-page report which most legal observers believe could have been done in 50, if not less. He could have simply said he declined to prosecute and left it at that but what he did was nothing less than a partisan hit job masquerading as a prosecutorial declination.
Despite laying out in detail that he could find no evidence that Biden committed any crime, making it clear that what he did was far less egregious than what Trump is accused of doing and declaring that he would not prosecute Biden even if he were out of office, Hur wrote what amounts to a chatty little novel about what he thinks of Biden's personality and mental capabilities. Perhaps his parents really wanted him to be a psychiatrist or a neurologist instead of a lawyer and this was his big chance to make them proud but it was entirely inappropriate.
Hurr opens the report with what amounts to a character study of Biden that suggests he has delusions of grandeur for saving papers from early in his career because he thought he might be president someday. Then he embeds in the report a fatuous rationalization that he personally believes that if he were to bring the case to a jury — a case which he has already stated he could not find the evidence to prove — they would feel sorry for Biden because he is a "well-meaning, elderly gentleman with a bad memory." He dug deep to find a way to get that in there. He pretty much implies that the president is demented because he didn't perfectly remember dates from the past, something that defense lawyers commonly tell their clients to be careful about trying to do under oath.
It's a nasty piece of slander that Hur no doubt believed served the purpose of preserving his place in MAGAworld without him having to recommend charges based on nothing. As one of Barack Obama's top advisers put it:
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.
— Jim Messina (@Messina2012) February 8, 2024
This reaction from Tennessee GOP Senator Marsha Blackburn is typical:
It's hard to imagine House Republicans would use this heavily padded tome as the basis for an impeachment article since it would also put Trump's stolen documents case on the front burner again but they might just do it. Lord knows the rest of their case is going nowhere. If I were a conspiracy-minded person I might even think that Hur took a page out of Ken Starr's bodice-ripper and wrote it just for that purpose. If so, they might want to check in with Newt Gingrich about how well that worked out for them.
This was a shamefully inappropriate cheap shot against President Biden but in the end, despite the media's febrile "but her emails" reaction, I doubt that this changes much in the dynamic as long as the Republicans are all genuflecting to a man whose memory is so bad that he mistakenly identified his rape victim as his former wife during a deposition. They have much bigger problems on their hands.
