Special counsel Robert Hur on Thursday released a 388-page report on President Biden’s retention of classified material, finding the president frequently showed limitations with his memory and recall.
While the report concluded no charges should be brought against the president, its language describing Biden, 81, is likely to be campaign fodder for Republicans who have repeatedly raised questions about the president’s ability to serve.
Some of the language came off looking like a gift to Trump’s presidential campaign.
In opting not to bring charges, Hur, who was appointed by former President Trump to serve as U.S. attorney for the District of Maryland in 2017, cited the shortage of evidence, but also how Biden would present himself to a jury.
“We have also considered that, 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,” 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.”
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The report on more than one occasion refers to Biden struggling to remember things when he spoke to a ghostwriter for his memoir, as well as when he was speaking to investigators.
Hur cited Biden’s 2017 conversations with ghostwriter Mark Zwonitzer, which Hur described as “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,” Hur wrote.
A pro-Trump super PAC quickly made use of the report.
“If you’re too senile to stand trial, then you’re too senile to be president. Joe Biden is unfit to lead this nation,” Alex Pfeiffer, communications director for the pro-Trump super PAC Make America Great Again Inc., said in a statement.
Hur’s report is likely to set off a fury with Biden supporters. Democratic strategist Paul Begala, speaking Thursday afternoon on CNN, described some of the remarks as cheap shots. Biden’s personal and White House lawyers wrote a letter to Hur on Monday upon the conclusion of the investigation arguing the special counsel’s treatment of the president was unfair and called the repeated references to his memory “gratuitous.”
“It is one thing to observe President Biden’s memory as being ‘significantly limited’ on certain subjects. It is quite another to use the more sweeping and highly prejudicial language employed later in the report,” White House special counsel Richard Sauber and personal attorney Bob Bauer wrote to Hur.
“This language is not supported by the facts, nor is it appropriately used by a federal prosecutor in this context,” they added. “We request that you revisit your descriptions of President Biden’s memory and revise them so that they are stated in a manner that is within the bounds of your expertise and remit.”
Bauer, Biden’s personal attorney, issued a statement Thursday that chastised Hur and his team for “investigative excess” and complained that the special counsel had overstepped with his lengthy report.
Bauer did not directly bring up the references to Biden’s memory, but it was clear he was taking umbrage with the nature of parts of the report.
“Very little in this opus adds to a clear, succinctly stated understanding of a straightforward conclusion: no misconduct occurred, no charges are warranted,” Bauer said in a statement.
“Throughout this process, a guiding principle has been to protect the integrity and independence of this investigation,” Bauer added. “Based on the facts and the law, the Special Counsel in this case 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.”
FILE – U.S. Attorney Robert Hur arrives at U.S. District Court in Baltimore on Nov. 21, 2019. Attorney General Merrick Garland on Thursday, Jan. 12, 2023, appointed Hur as a special counsel to investigate the presence of documents with classified markings found at President Joe Biden’s home in Wilmington, Del., and at an office in Washington. (AP Photo/Steve Ruark, File)
Attorney General Merrick Garland appointed Hur as the special counsel handling the investigation in January of 2023, shortly after it was made public that classified documents were discovered at Biden’s Delaware home.
Hur was confirmed in 2018 as U.S. attorney for the District of Maryland, making him the chief federal law enforcement officer in the state. He resigned from the post in early 2021.
The president’s age has clouded discussions about the presidential race, particularly with Trump, 77, expected to be the GOP nominee. Polls have repeatedly shown voters have concerns about Biden’s age. Other surveys have suggested a large number of Americans are unhappy with their choices in Biden and Trump.
GOP presidential candidate Nikki Haley, who is still in the Republican race, has repeatedly pointed to the need for a new generation of leaders in an effort to give her own campaign new life. Trump trounced Haley in the opening contests of the GOP primary.
The report could also spark real worries among Democrats that they could lose the White House if voters fear Biden’s ability to act as president, a notion on which Biden’s team has repeatedly pushed back. Biden is not facing meaningful opposition in his own primary, though long-shot candidate Dean Phillips, a House member from Minnesota, has sought to make his age an issue.
The special counsel at one point in the report wrote that Biden “did not remember when he was vice president,” forgetting when his term ended, and in another instance forgot when his term began. Hur reported Biden did not remember when his son Beau had died, and his memory “appeared hazy” when speaking about a debate over Afghanistan that was critical to his memoirs.
“In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall,” Hur wrote.
Biden said in a statement emphasized his own stamina and noted that he “cooperated completely, threw up no roadblocks, and sought no delays” in Hur’s investigation.
“In fact, 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 October 8th and 9th of last year, even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis,” he said.
Biden would be 86 at the end of a potential second term. The president has said it is fair for voters to consider his age, but he and his team have stressed that he should be judged on his record of achievements while in office.
Twice this week Biden has confused the names of European leaders he met with at a Group of Seven Summit early in his presidency.
An NBC News poll published this week found 76 percent of voters, including 54 percent of Democrats, said they had major or moderate concerns when asked whether Biden, 81, has “the necessary mental and physical health to be president for a second term.”
Trump, who is 77, has not been immune from his own moments of confusion on the campaign trail.
Trump at one October rally appeared to confuse the leaders of Hungary and Turkey. In January, he repeatedly confused former Speaker Nancy Pelosi (D-Calif.) with his GOP primary opponent Nikki Haley, falsely claiming Haley was in charge of security during the Jan. 6 attack on the Capitol.
This story was updated at 4:44 p.m.