Special counsel overstepped mandate with ‘gratuitous’ Biden slams, say ex-DOJ Dems

Pointed language in special counsel Robert Hur’s classified records report drawing attention to President Biden’s age and cognitive ability is coming under fire from former Justice Department officials who say he overstepped his mandate in the case.

Hur ultimately declined to recommend any charges for Biden due to key weaknesses in the case: He simply did not believe he had enough evidence to convince a jury that Biden willfully kept the documents — the burden of proof in such cases.

But that detail is being overshadowed by how Hur described Biden, their interactions, and the president’s overall cognitive abilities in a report Democratic appointees to the Justice Department say crossed a line and skirted principles of offering neutral legal analysis.

“Special Counsel Hur report on Biden classified documents issues contains way too many gratuitous remarks and is flatly inconsistent with long standing [Justice Department] traditions,” former Attorney General Eric Holder, an appointee of former President Obama, said on social media shortly after the report was released.

While the executive summary of the report condemns Biden’s behavior and explores his motive for holding onto the documents, it’s not until 200 pages into the nearly 400-page report that Hur notes the president’s numerous defenses as well as “a shortage of evidence” to support a case.

“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 write in a new Just Security analysis.

Hur took a number of shots at Biden’s memory, at turns faulting him for being unable to recall when his son, Beau, died, and writing that his memory “appeared hazy” when speaking about a debate over Afghanistan that was critical to Biden’s memoirs.

“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.”

Numerous legal experts and Biden allies have turned to the same word to describe Hur’s notes on the president’s cognitive abilities: gratuitous.

“Totally gratuitous. After all, earlier in the report, it says Biden has all sorts of innocent explanations for his behavior,” Neal Katyal, a former acting solicitor general during the Obama administration, said during an appearance on MSNBC. 

“It feels like a too clever move by half by the special counsel to try and take some swipes at a sitting president, and it doesn’t sit well with me at all, and I do think that it is very much in tension with the Justice Department guidelines on special counsels.”

Weissmann also said the comments from Hur were a lengthy departure from guidelines that stress sticking to the facts of the case and assessing the strength of the evidence without extraneous commentary. 

“That is not the role of the Department of Justice,” Weissmann said in an interview on MSNBC shortly after Hur’s report was released.

“Whether I find you in an interview to have forgotten things, certainly to say what do you remember about certain documents in your house four or five years ago, I would understand that you might not remember that. To talk about your memory today, irrelevant. It is gratuitous. And it is also exactly what you’re not supposed to do, which is putting your thumb on the scale that could have political repercussions,” he added.

“The vernacular in the Department of Justice is put up or shut up. You either decide to go forward that there is proof here, or you don’t say anything at all with respect to your sort of opinions about the case.”

Preet Bharara, an Obama appointee who served as the U.S. attorney for the Southern District of New York, argued Hur’s comments about Biden’s memory were not relevant to his handling of classified documents and had no place in the final report.

“In a context to which you appoint a special counsel to be above and away from politics, he’s provided political grist to the opponents of Joe Biden as a matter of politics,” Bharara said on ABC’s “This Week.”

“It’s a weird landscape we’re in where Donald Trump gets credibly charged in four charging documents, four indictments around the country, and that’s a political boon for him,” Bharara added. “And Joe Biden, on the other hand, this week gets exonerated in a document, and it’s a political nightmare for him. Something is upside down.”

The Hur report drew comparisons from some critics and Democrats to former FBI Director James Comey’s handling of the investigation into Hillary Clinton’s private email server in the closing months of the 2016 election. Comey held a press conference in July of that year in which he said there would not be charges against the then-Democratic presidential candidate, but he also described her conduct as “extremely careless.”

Not every legal expert or former prosecutor felt Hur was out of bounds, though.

Chris Christie, who served for seven years as a U.S. attorney in New Jersey before serving as the state’s governor, said he did not think the report crossed any lines.

“The fact is they had to give the reasons why they weren’t prosecuting when you start off the report by saying that he ‘willfully and knowingly retained classified documents,’” Christie said on “Meet the Press” on Sunday. “Well, that’s a violation of the law. So the question, then, for the prosecutor is, ‘Then why aren’t you bringing charges?’ And he gave two reasons essentially. One was President Biden’s memory, lack of memory, his condition, and secondly, was that President Biden cooperated.”

But those were not the sole reasons Hur didn’t recommend charges.

He also noted he simply did not have enough evidence to indicate Biden intentionally took the documents.

“While it is natural to assume that Mr. Biden put the Afghanistan documents in the box on purpose and that he knew they were there, there is in fact a shortage of evidence on these points. We do not know why, how, or by whom the documents were placed in the box. We do not know whether or when Mr. Biden carefully reviewed the box’s contents. We do not know why only some of Mr. Biden’s classified Afghanistan memos … were found in the box, but several other memos he wrote during that time were not,” Hur wrote.

The White House argued this lack of evidence should have featured more prominently in Hur’s report, rather than what his aides said were unnecessary comments that were ultimately not central to the case.

“When the inevitable conclusion is that the facts and the evidence don’t support any charges,” said Ian Sams, a spokesman for the White House’s special counsel office, “you’re left to wonder why this report spends time making gratuitous and inappropriate criticisms of the president.”