Former Special Counsel Robert Hur faced bipartisan flak on Tuesday during a House Judiciary Committee hearing about his conclusions regarding President Joe Biden's retention of classified material after he served as Barack Obama's vice president. Republicans wanted to know how Hur could conclude that criminal charges against Biden were not warranted when Special Counsel Jack Smith is prosecuting former President Donald Trump for broadly similar conduct. Democrats complained about Hur's description of Biden as "a sympathetic, well-meaning, elderly man with a poor memory" and "diminished faculties in advancing age," which they portrayed as legally irrelevant and possibly motivated by the hope of a judicial appointment in a second Trump administration.
A 258-page interview transcript that was released ahead of the hearing sheds some light on the latter issue. The transcript, which is based on hours of recorded interviews with Biden that Hur and his staff conducted on October 8 and October 9, largely supports Hur's description of Biden in his February 5 report, which was legally mitigating but politically damaging in the context of the 2024 presidential race, given the concerns that voters have expressed about the 81-year-old president's cognitive health.
During the interviews, New York Times reporter Charlie Savage writes, "Mr. Biden appeared clearheaded most of the time"—an excellent example of damning with faint praise. Voters who think Biden is "just too old to be an effective president"—nearly three-quarters of them, according to a Times/Siena College poll conducted in late February—are not likely to be reassured by the assessment that he is usually "clearheaded." And Savage also highlights portions of the interviews that do not fit that description.
Some of Biden's recall failures are the sort of convenient memory lapses that are common in interviews with criminal suspects and civil defendants. "In trying to determine whether Mr. Biden had willfully retained certain classified documents, Mr. Hur repeatedly pressed him for details, like where and how his staff stored classified documents, who packed up when his vice presidency ended and where particular files had gone," Savage says. "Mr. Biden, who has denied wrongdoing, repeatedly demurred, saying he did not recall or had no idea how his staff handled such matters, and observing that there was 'a continuum of a lot of these people' who assisted with those tasks."
In particular, Biden professed ignorance of how sensitive documents related to the war in Afghanistan ended up in "a tattered cardboard box in his garage in Delaware, along with a jumble of unrelated materials": "'I don't remember how a beat-up box got in the garage,' he said, speculating that someone packing up must have just tossed stuff into it. He added that he had 'no goddamn idea' what was in a tranche of files shipped to his house and 'didn't even bother to go through them.'"
Other Biden memory lapses fall into a different category. In several exchanges, he seemed genuinely confused about basic facts such as when he served as vice president, when his son Beau died, and when Trump was elected president.
"Do you have any idea where this material would've been before it got moved into the garage?" Hur asked. "Well," Biden responded, "if it was 2013—when did I stop being vice president?" White House lawyer Rachel Cotton helped him out: "2017." Based on that cue, Biden said, "So I was vice president. So it must've come from vice president stuff. That's all I can think of."
When Biden was asked "how a particular folder…ended up in his garage" in 2017, he "mistakenly instead invoked the year the documents were from" and again seemed uncertain about the timing of his service as vice president. "My problem was I never knew where any of the documents or boxes were specifically coming from or who packed them," he said. "Just did I get them delivered to me. And so this is—I'm, at this stage, in 2009, am I still vice president?"
Savage argues that Hur "was selective in portraying Mr. Biden's memory of an ambassador's position." At one point, Biden mistakenly recalled that Karl Eikenberry, the U.S. ambassador to Afghanistan, disagreed with him about the merits of a troop surge. But at another point, Savage notes, Biden correctly remembered that he and Eikenberry were on the same side in that internal debate.
In his report, Hur said Biden "did not remember, even within several years, when his son Beau died." In remarks to the press shortly after the report was published, Biden expressed anger at that line. "How in the hell dare he raise that?" he said. "Frankly, when I was asked the question I thought to myself it wasn't any of their damn business." But the transcript shows that it was Biden who broached the subject.
Hur asked Biden where he kept papers related to various projects, including "your book"—a reference to Promise Me, Dad, his 2017 memoir about Beau's death. "This is, what, 2017, 2018, that area?" Biden asked. "Yes, sir," Hur confirmed. Then Biden launched into this halting and convoluted response, which seemed to confuse his Senate career with his time as vice president:
Remember, in this timeframe, my son is either been deployed or is dying, and so it was—and by the way, there were still a lot of people at the time when I got out of the Senate that were encouraging me to run in this period, except the president. I'm not—and not a mean thing to say. He just thought that she [Hillary Clinton] had a better shot of winning the presidency than I did. And so I hadn't, I hadn't, at this point even though I'm at Penn, I hadn't walked away from the idea that I may run for office again. But if I ran again, I'd be running for president. And so what was happening, though—what month did Beau die? My God, May 30th—
Cotton again chimed in: "2015." Biden still was not sure of the year: "Was it 2015 he had died?" An "unidentified male speaker" confirmed that "it was May of 2015," prompting Biden to reiterate that "it was 2015."
That exchange was immediately followed by confusion about another important date: "And what's happened in the meantime is that as—and Trump gets elected in November of 2017?" An "unidentified male speaker" corrected Biden: "2016." If so, Biden wondered, "why do I have 2017 here?" As White House Counsel Ed Siskel explained, "that's when you left office, January of 2017."
Biden then returned to the subject of Beau's death. "And in 2017, Beau had passed and—this is personal—[that was] the genesis of the book and the title Promise Me, Dad." He then recounted at length the story of how Beau's dying wish had inspired him to remain in politics and later seek the presidency. In other words, the transcript refutes Biden's subsequent claim that Hur and his staff had forced him to delve into a sensitive matter that "wasn't any of their damn business."
In addition to supplying "context" for the memory lapses cited by Hur, Savage notes "some minor seeming slips that went unmentioned in Mr. Hur's report." For example, Biden "needed to be nudged to recall the name of the federal agency that takes custody of official records—the National Archives—or that fax machine is the name of the device that transmits images of documents over phone lines."
Biden said one staff member "focused on taking the things that she thought that [the University of Delaware] might want, or that would go to the—what's it called? You know, the federal government." His lawyer Robert Bauer knew the answer: "The Archives." Referring to a piece of equipment in a home office, Biden started to ask, "What do you call it when they send these—" Siskel was on it: "Fax machine."
Again, those "minor seeming slips" were not included in Hur's report. As for the lapses he did mention, many Democrats thought their inclusion was gratuitous. But Hur was obligated to explain why he decided not to prosecute Biden, and that decision hinged on whether he could persuade a jury, beyond a reasonable doubt, that Biden "willfully" retained national defense information when he had "reason to believe" it "could be used to the injury of the United States or to the advantage of any foreign nation." In concluding that he probably could not meet that test, Hur anticipated that jurors would be inclined to view Biden's retention of classified documents as accidental.
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. "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."
Contrary to the way that Democrats have portrayed his report on Biden, Hur noted during Tuesday's hearing, "I did not 'exonerate' him; that word does not appear in the report." Rather, Hur concluded that there was ample room for reasonable doubt as to whether Biden "willfully" violated the law, including his cooperation in identifying and returning the documents after his lawyers found the first set as well as his generally plausible claims that he either did not know or could not recall how the material ended up in his possession.
In Trump's case, by contrast, such excuses can get him only so far. Even if his initial retention of more than 300 classified documents after he left the White House was unintentional, inadvertence does not explain his resistance to returning them, including his alleged defiance of a federal subpoena.
While "it is not our role to assess the criminal charges pending against Mr. Trump," Hur said in his report, there are "several material distinctions between Mr. Trump's case and Mr. Biden's." Unlike "the evidence involving Mr. Biden," Hur wrote, "the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts. Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it."
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