Reflecting on the Biden special counsel report

And why Trump is in legal jeopardy while Biden is not

It has been a few days now since Special Counsel Robert Hur released his report on President Biden’s handling of classified information. The report generated a lot of headlines on both sides of the political aisle, along with misinformation. The report was somewhat exonerating for Biden, but it was also extremely damaging.

There were two key findings in the report (which you can read here) but they come with caveats. The first finding was that the “investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”

Photo by Jon Tyson on Unsplash

That’s bad, but the caveat, which you won’t hear in the right-wing press, is that “the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt. Prosecution of Mr. Biden is also unwarranted based on our consideration of the aggravating and mitigating factors set forth in the Department of Justice's Principles of Federal Prosecution.”

Hur notes, “We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.”

So what are the “aggravating and mitigating factors?”

One is that he might not have realized that he possessed the documents. As the report notes, “They could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president, as were other classified documents recovered during our investigation.”

Partisans won’t find this possibility credible, but the special counsel does.

The report also states, “His cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully - that is, with intent to break the law - as the statute requires.”

This is a key difference between the Biden case and the Trump case. Where Biden (and Mike Pence) reported the discovery of documents and cooperated with the FBI in returning them to a secure location, the evidence is that Donald Trump took a starkly different action. Trump allegedly fought the National Archives’ attempts to recover the classified documents stored at Mar-A-Lago and obstructed the FBI by conspiring to move the boxes of documents so they couldn’t be recovered.

Where Biden and Pence did the right thing and returned the documents that they had either willfully or unwittingly taken home, Trump claimed ownership of the government documents from his Administration and fought to keep them. That is not a distinction without a difference.

So believes the special counsel who explicitly says, “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.”

Biden does claim ownership of some classified material, but these are personal notebooks and notecards that contain classified information. The special counsel says “We believe he was mistaken about what the law permits” but admits that Biden’s “view finds some support in historical practice.”

Ironically, the historical precedent comes from President Reagan who took handwritten diaries to his California home after leaving office. Reagan was never prosecuted and the the eight years’ worth of diaries were not removed even though they contained top secret and classified information. The fact that they were “personal records” makes a difference.

The bigger problem for Biden is in part of Hur’s rationale for not charging him. The special counsel lays out exactly what the law says:

To prove unauthorized retention of national defense information under 18 U.S.C. § 793(e) the government must show: (1) the defendant had unauthorized possession of a document, writing, or note; (2) the document, writing, or note related to the national defense; and (3) the defendant willfully retained the document. writing, or note and failed to deliver it to an employee or officer entitled to receive it.

It is the third point, the willful retention requirement, that destroys the case against Biden. As Hur writes, there is insufficient evidence to prove beyond a reasonable doubt that Biden purposely retained the classified documents that were not personal records and may not have even known that many of them were on his property. The report also notes that many of the classified documents were so old that there was little national security interest still to be had.

But Hur goes further with a statement that is very damaging to Biden’s image and credibility, saying, “Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well meaning [sic], elderly man with a poor memory.”

Biden’s defenders argue that saying “I don’t recall” is common when someone is being interviewed by investigators. It’s true that this is a better strategy than lying or making guesses, but this is not what Biden allegedly did.

Per the report, Biden “did not remember when he was vice president, forgetting on the first day of the interview when his term ended ("if it was 2013 -when did I stop being Vice President?"), and forgetting on the second day of the interview when his term began ("in 2009, am I still Vice President?"). 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. Among other things, he mistakenly said he ‘had a real difference’ of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Eiden cited approvingly in his Thanksgiving memo to President Obama.”

This is disturbing stuff. Even more disturbing is that Biden attacked Hur for asking about his son Beau Biden’s death but subsequent reports say that Biden himself raised the issue as he was trying to remember dates by associating them with other events in his life.

There is some mitigation for this situation as well. The events in question were often more than a decade ago while Beau Biden’s death was in 2015 (Biden reportedly remembered the day but not the year). Timelines run together and our memories play tricks on us.

Personally, I often use a similar mental trick. When trying to remember when something happened, I remember where I was working or where we lived at the time. This helps to more sharply refine the possible time period in question.

Nevertheless, Biden’s confusion is a problem for a presidential candidate facing concerns about his age and mental acuity. For a candidate who has faced accusations of dementia for years, the reports of confusion are not going to help.

What may help to save Biden is another irony, the fact that he is almost certainly going to face another candidate with a propensity for senior moments.

Nikki Haley has launched attacks on Donald Trump’s mental fitness after the presumptive Republican nominee confused her with Nancy Pelosi prior to the New Hampshire primary. That was only one in a series of incidents that included The Former Guy misstating which country his ally Viktor Orban leads, erroneously claiming that he won New Hampshire in 2016 and 2020, and implying that Barack Obama is still president.

“If this were your Uncle Joe [an ironic choice of names], you'd be running – not walking – to the neurologist,” John Gartner, a former psychology professor at Johns Hopkins University and founder of "Duty to Warn," a movement by medical professionals to draw attention to Trump's cognitive health, told US News. “If you walked into an emergency room in a psychotic state, the first question would be, 'Who is the president of the United States?' That's literally on the psychiatric medical exam.”

I’ve used the term “irony” a lot today, but there is much irony to be had this year. We have two candidates who were caught with classified documents in their homes. Two candidates who both exhibit signs of mental decline.

The reality is that neither of these guys should be running for president. Moreover, neither of them should be a frontrunner. Are they really the best we can do?

The answer to that, of course, is no. There are many better candidates but in Biden’s case, the party of a sitting president almost always defers to his re-election campaign, and in Trump’s case, Republicans are actively and enthusiastically rejecting better candidates in favor of Trumpian corruption and craziness.

Nikki Haley is a very flawed candidate in her own right, but she is the only hope for a sane and somewhat competent presidency. I plan to support her in the Republican primary and hope that my readers will as well.

But if, as I think it will, the choice in November comes down to Trump or Biden, I’m going to have to vote for the senile grandpa over the crazy, malevolent uncle with a history of abusing his power. It is, after all, a binary choice even though there will be other candidates. Our best hope is to create a better binary choice.

BAD NEWS FOR BIDEN IMPEACHMENT: The FBI charged Alexander Smirnov with lying to investigators. Smirnov testified that Burisma executives paid Joe and Hunter Biden $5 million each for protection. Prosecutors now say that the meeting described by Smirnov never happened, but Smirnov’s testimony is a major factor in the attempt to impeach President Biden.

ILLEGAL BORDER CROSSINGS PLUMMET: The New York Times reported that illegal border crossings dropped by 50 percent in January citing CBP numbers.

NAVALNY DIES: Putin critic Alexei Navalny has died in a Russian prison. Tucker Carlson could not be reached for comment.