Joe Biden, senior aides and political observers strongly criticised the special counsel, Robert Hur, for extensively discussing the president’s age and allegedly fading memory in his report on Biden’s retention of classified information from his time as a senator and as vice-president – which did not produce an indictment.
Hur, who Donald Trump appointed US attorney for Maryland, “could not refrain from investigative excess”, said Bob Bauer, Biden’s personal counsel.
Though this was “perhaps unsurprising given the intense pressures of the current political environment”, Bauer added, the final report “flouts Department [of Justice] regulations and norms”.
Others raised the spectre of James Comey, the FBI director who in 2016 investigated Hillary Clinton over her use of private email in office. Declining to indict, Comey chose instead to publicly cast doubt on Clinton’s character, an act widely held to have helped tip the election to Trump.
Speaking to Politico, an unnamed top Biden campaign official said Hur’s report “felt like a Comey moment”, as the special counsel had put his “thumb on the scale during an election season”.
Dan Pfeiffer, a Barack Obama adviser turned commentator, called Hur’s report “a partisan hit job”.
The oldest US president ever, Biden is now 81 and would be 86 by the end of a second term. Polling shows most Americans think he is too old.
In late 2022, as Trump faced his own special counsel investigation regarding retention of classified information, Biden was discovered to have retained materials from his time as a senator from Delaware and as vice-president to Obama.
Hur was appointed special counsel by Merrick Garland, the US attorney general. Then in private practice but also a former principal associate deputy attorney general, Hur was described by Andrew McCabe, a former FBI deputy director, as a “well-informed, industrious, hard-working guy”.
A little over a year later, on Thursday, Hur issued his 388-page report.
Biden’s memory “appeared to have significant limitations”, it said, also suggesting Biden would appear to any jury as “a well-meaning, elderly man with a poor memory”.
“He did not remember when he was vice-president, forgetting on the first day of the interview when his term ended … and forgetting on the second day of the interview when his term began,” Hur wrote.
“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.”
Trump – the probable Republican presidential nominee who at 77 faces his own doubts about mental fitness, even if fewer Americans say he is too old – seized on Hur’s report, particularly in the context of his own problems regarding classified records, the subject of 40 of 91 criminal charges across four cases.
Some Trump allies called for the use of the 25th amendment to the US constitution, providing for the removal of a president deemed incapable.
Biden reacted furiously. Regarding the claim he couldn’t remember the year (2015) of the death of his older son, the former Delaware attorney general Beau Biden, the president said: “How in the hell dare [Hur] raise that. Frankly … I thought to myself it wasn’t any of their damn business. I don’t need anyone to remind me when he passed away.
“The simple truth is, I sat for a five-hour interview over two days of events going back 40 years. At the same time, I was managing an international crisis [the Hamas attacks on Israel on 7 October].
“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.”
Hur’s “extraneous commentary” had “no place in this report”, Biden added.
Bauer elaborated: “The [DoJ] inspector general observed only a few years ago that high-profile investigations, such as those of a president, may be ‘subject to scrutiny not typical of the average criminal case, but that does not provide a basis for violating well-established department norms, and, essentially, ‘trashing’ the subject of an investigation’ with extraneous, unfounded and irrelevant critical commentary.
“The inspector general added that it ‘violate[s] long-standing department practice and protocol’ to ‘criticise uncharged conduct’. The special counsel report fails that test as well.”
Hur, Bauer said, “had no choice but to find that criminal charges were not warranted. He had other choices, which should have been guided by the department’s rules, policies, and practices, and he made the wrong ones.”
The MSNBC host Joe Scarborough, an ex-Republican congressman, accused Hur of “irrelevant … politically charged, Trump-like ramblings”.
“It sure sounds like James Comey, who couldn’t indict Hillary Clinton illegally so he decided to hold a press conference and indict her politically.”
In his Message Box newsletter, Pfeiffer said the report was “very bad and poses some real political peril”.
But he added: “Robert Hur is described in press reports as a ‘well-respected US attorney’ – and maybe he once was. But this report is a partisan hit job. He swerves out of his lane to drive a negative narrative about Biden, the same message the Republican party uses against Biden … generously describ[ing] memory lapses from others but hammer[ing] Biden for the same.
“It’s hard to read the report and not think that, without the ability to charge Biden with a crime, Hur wanted to damage him politically.”
Pfeiffer added: “If Biden acts like Hur says, we would all know. Biden meets with dozens of people daily … if [he] was regularly misremembering … or making other mistakes that suggested he was not up to the job, it would be in the press. Washington is not capable of keeping something like that secret.”
Speaking to Politico, the unnamed Biden official said the campaign would seek to portray Hur as “a Maga guy”, meaning a Trump loyalist, but acknowledged that public perceptions about the president’s age persist.
“The fact that he’s a senior citizen is not going to go away,” the Biden official said.
