• Show Notes

It’s not the feeble old man part that matters most in the incendiary report by Special Counsel Robert Hur. It’s that Joe Biden knew he had highly classified documents in his home, kept them for a reason, and held onto them for years. He knew, all along. He arguably broke the law, and he definitely misled the American public. 

That should be the vital takeaway from Hur’s investigation – more than the report’s headline-stealing description of Biden’s advanced age and creaky memory. 

For anyone howling about Hur’s report, let’s recognize, first, that he had to write it. Federal regulations require that, at the end of the investigation, the special counsel must create a report “explaining the prosecution or declination decisions.” Now, one could fairly take issue with how Hur wrote the report. We don’t want prosecutors flaming people they don’t indict, after all, and Hur drafted a 300-plus page tome that included damaging revelations (at times with excessive flourishes) about Biden and others around him. I’ll allow that objection, on one condition: you also must be on record condemning another special counsel, Robert Mueller, who wrote a 400-plus page report excoriating Donald Trump, without recommending indictment. It’s entirely fair to argue that prosecutors should either charge or stay as mum as possible, or that the special counsel rules are a mess – but it has to work both ways. 

Hur’s report is essentially a prosecution memo, a standard document in which prosecutors lay out their evidence and consider the arguments for and against indicting. (DOJ policy prohibits a criminal charge against a sitting president, but Hur certainly could have recommended a post-presidency indictment.) I’ve written hundreds of these documents, and reviewed many more. In my view, this is a razor’s-edge call, and it reasonably could’ve gone either way.

The report states on page one that the investigation “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency.” If that sounds familiar, it might be because Donald Trump now faces 32 felony counts in Florida (brought by a higher-profile DOJ Special Counsel, Jack Smith) for the federal crime of “Willful Retention of National Defense Information.” Hur comprehensively lays out the evidence, and the difficulties a prosecution might face, including the challenge of establishing Biden’s criminal intent. The Special Counsel’s account of Biden’s mental acuity feels overstated and unnecessarily colorful to me, but it’s a relevant factor that weighs considerably in Hur’s assessment of the case’s shortcomings. Further complicating the picture: Biden had several different batches of classified materials circulating around his Delaware-Virginia-DC home-office ecosystem, and he plainly did not know about some of the documents – but, as we’ll discuss in a moment, he absolutely did know about others. 

The end result is a Rorschach test of sorts. There are Bill Barr-esque whitewashes out there that gloss over or ignore the damning evidence while highlighting the soft spots in the report for Biden, including the fact that he seemingly did not know about some of the documents. And then there are headlines that focus entirely on Hur’s use of the term “willful” and conclude that a criminal charge was mandatory. Neither tells the full story. The truth is, prosecutors are not automatons who take concrete inputs and spit out a mathematical result. There’s judgment involved, and this one’s close enough that reasonable prosecutors can reach different conclusions.  

Let’s do this part right now, because it’s mandatory and important: Trump’s conduct was worse than Biden’s. I’ll say it again: Trump’s conduct was worse. That’s a plain, irrefutable truth; Hur even takes pains to say so – perhaps gratuitously – in his report. Trump took more classified documents than Biden did, he was more careless (or worse) with them, and he obstructed justice (bigly) while Biden did not. But Biden’s conduct is indefensible nonetheless.

Here’s the report’s biggest revelation: Biden held onto classified, top-secret national security documents after he left the vice presidency – and he did it intentionally. This was no accident. Biden had those documents for this specific reason: he believed he had been right on American policy in Afghanistan (and that President Barack Obama had been wrong), and he wanted to paint himself as the visionary hero (and Obama as the heel) in the historical narrative. That’s why Biden shared some of their contents with his ghostwriter – though Hur acknowledges that Biden may have disclosed that classified information inadvertently, citing Biden’s “lapses in attention and vigilance.” 

Here’s the single most important piece of evidence in Hur’s report: in a recording made by the ghostwriter in February 2017 – a month after Biden left the vice presidency – Biden says he had “just found all the classified stuff downstairs.” That, folks, is the needle-scratch moment. Up until last week, the party line has essentially been: Hey, classified documents are strewn all around the White House, a bunch of boxes got moved around, transition is chaotic, documents end up in various places, big mistake, whoops, sorry. Now we know that’s untrue. 

Indeed, for the past year, the President and his mouthpieces have doggedly denied intentionality. Biden’s attorney declared in January 2023, as the scandal broke, that “documents were inadvertently misplaced.” Wrong. It wasn’t “inadvertent” – Biden possessed at least some of the papers knowingly and on purpose. White House Press Secretary Karine Jean-Pierre said Biden did not know that classified documents were in his home or office, and had no idea what they contained. False and false. Biden himself said he was “surprised to learn there were any government records that were taken there to that office [in Washington DC].” This is misdirection, at best. Perhaps Biden was surprised that classified documents wound up at that specific location, but he sure as hell knew (and omitted) that he had classified documents elsewhere, at his home (“downstairs,” to be specific). 

Now that Biden has been caught dissembling to the public, he has tried to pivot to the better news. In an official statement issued just after Hur’s report became public, the President proclaimed that he “cooperated completely, threw up no roadblocks, and sought no delays.” I’ll give him “cooperated” – but not “completely,” not anymore.  

Timing is key here. Think back to that February 2017 recording, when Biden said he “found all the classified stuff downstairs.” What did Biden do, back then? Did he have his people get right on the phone with the Archives, or the FBI, to turn the documents back in? Nope. He kept those sensitive documents and said nothing for five more years. Not until 2022 – after the FBI executed its search warrant on Trump at Mar-A-Lago – did Biden’s people alert the authorities. 

As a whole, Biden and his team get maybe a B-minus for cooperation. It’s not quite the gold star his flacks have made it out to be. Cooperation is a relevant consideration for prosecutors, and Hur plainly gave Biden some credit for his belated efforts to return documents to the government. But of course cooperation – especially when it’s less than complete – does not erase everything that preceded it. It counts, but it’s not a magic wand.

Biden supporters are rightly concerned that Hur’s colorful and extraneous harping on the man’s mental state could hurt his electoral chances in November. That may be true. But an indictment would’ve been far worse. 

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