Special counsel who scrutinized Biden’s memory to come under spotlight

Special counsel Robert Hur will testify before House lawmakers Tuesday over his investigation into President Biden’s handling of classified documents.

While Hur cleared Biden of wrongdoing, his report was at times critical of the president’s actions and particularly harsh in its assessment of Biden’s memory.

Here are four things to watch for at Hur’s hearing before the House Judiciary Committee.

Biden’s memory

While Hur declined to bring charges against Biden for his handling of classified materials, that conclusion was overshadowed by several passages in which the special counsel said the president struggled to remember events or details.

The special counsel at one point in the report wrote that Biden “did not remember when he was vice president.” The report said Biden forgot when his term ended, and in another instance forgot when his term began.

Hur reported Biden did not remember when his son Beau died, and his memory “appeared hazy” when speaking about a debate over Afghanistan that was critical to his memoirs.

Biden’s memory is almost certain to be a focal point for Republicans during Tuesday’s hearing because they have argued Hur’s report is evidence the president is not up to serving a second term even as he pursues reelection.

There could also be a push from some on the panel to release transcripts of Hur’s interview with Biden, either to put to rest concerns about Biden’s recall abilities or to bolster the report’s conclusion that a jury would find Biden to be “a sympathetic, well-meaning, elderly man with a poor memory.”

That detail is likely to be hammered by Republicans, who are eager to make Biden’s mental acuity a campaign issue.

How does Hur defend his report amid criticism of politicization 

Hur concluded there was not enough evidence to mount a successful case against Biden, saying prosecutors would have to contend with significant weaknesses in trying to convince a jury the president intentionally retained the documents.

But that conclusion was largely buried in the report and was overshadowed by Hur’s sharp criticism of Biden’s memory, as well as his review suggesting ego may have played a role in Biden’s decision to hold on to some documents.

Critics of Hur’s approach repeatedly described his critical language as “gratuitous,” suggesting he stepped outside the bounds of the special counsel role by providing so much commentary on Biden’s memory, particularly on details not central to any potential case.

Hur was also criticized for writing an executive summary that essentially hid his underlying conclusion that investigators simply were unable to find evidence that Biden intentionally took the documents — a key detail in a case that requires proving “willful” retention. 

“Hur writes at the outset: ‘Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.’ You have to wait for the later statements that what the report actually says is there is insufficient evidence of criminality, innocent explanations for the conduct, and affirmative evidence that Biden did not willfully withhold classified documents,” Andrew Weissmann, a former prosecutor on special counsel Robert Mueller’s team, and Ryan Goodman wrote in a Just Security analysis. 

Republicans seek to rope in Ukraine

The Hur report includes limited references to Biden’s work in Ukraine, detailing only two documents on the matter, which include a transcript of a call he made as vice president to then-Ukrainian Prime Minister Arseniy Yatsenyuk.

Hur places little importance on Biden’s note to preserve a copy of the transcript.

“The two exchanged pleasantries and the Prime Minister heaped praise upon Mr. Biden for his December 9, 2015 speech to Ukraine’s parliament. They did not engage in a substantive policy discussion. There may be technical or nuanced reasons to maintain the classification of the call, but no reasonable jury could conclude the call or its contents were national defense information after the end of Obama administration, or that by asking for a transcript of the call Biden intended to retain national defense information,” Hur wrote.

“The evidence suggests that the marked classified documents found at the Penn Biden Center were sent and kept there by mistake.”

Still, Republicans have poked around the edges of the topic after their investigation into Biden took a major hit when the source of bribery allegations was arrested on charges related to lying about the matter to the FBI. 

In letters to Attorney General Merrick Garland, Republicans sought the two Ukraine-related documents authorities found, and they asked whether “Biden’s personal attorneys placed any limitations or scoping restrictions during the interviews with Special Counsel Hur.”

How prominent is Trump’s document case

While Hur testifies about the decision not to bring charges against Biden, former President Trump is facing charges in Florida over his handling of classified materials and his refusal to return them.

Hur’s report took pains to note some clear distinctions between Biden’s case and Trump’s case, in which he is facing 40 federal counts. 

The special counsel noted Trump allegedly refused to return classified documents despite being given multiple opportunities, while Biden’s team turned over the materials in question to the Department of Justice and National Archives upon their discovery and cooperated with the investigation.

“It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear,” Hur wrote in his report.

Democrats in particular are likely to point those differences out and push back on the narrative from Trump and his allies that Biden’s handling of classified documents essentially negates the case against the former president.