Dear Reader,

We’re going to start today with a quiz, and you will be on the clock. So get out your phone, click over to the stopwatch function, and give yourself a 60-second countdown. Ready? Ok, here we go.

Quick: Name the three people who are currently acting as special counsel for the U.S. Department of Justice. 

Right, Jack Smith. That was the gimme. You got Number 1. You should have 58 seconds or so left. 

Ok, on to number two. Tick tock, folks. 

Did you get David Weiss? That’s a bit of a trick question. He’s the Delaware U.S. Attorney who (somehow) spent five full years investigating Hunter Biden and nearly entered into a misdemeanor plea deal – only to suddenly reverse course last month and request special counsel status, which was granted by Attorney General Merrick Garland. If you got Weiss, congratulations; you’re right on top of the news, for better or worse. 

Now, how about special counsel number three? You’ve got maybe 30 seconds left, if you’re good. Want a hint? Think classified documents. Delaware. Corvettes. Ok, now you probably got what this one’s about, but can you remember the special counsel’s name? 

And the answer is… Robert Hur. Did you get it? If so, then either you work in the national political or legal media and you have a steel-trap memory or, perhaps, you actually are Robert Hur. (In which case, Mr. Special Counsel, drop me an email, I’d love to interview you.) 

Hur, you’ll recall, was named special counsel by Garland to investigate President Joe Biden’s possession of classified documents back on January 12, 2023. Since then, Hur and his shop have maintained public radio silence, and we’ve learned virtually nothing about his investigation. Note the contrast here between Hur’s case and Jack Smith’s. Even before Smith indicted Trump (twice), we saw daily media scoops about his strategic maneuvers and secret grand jury proceedings. Heck, CNN (where I’m a Senior Legal Analyst, full disclosure) reported on Smith’s most important piece of evidence, the audio of Trump waving around classified war plans at Bedminster, weeks before it ever featured in his indictment or other public filings. That’s not necessarily to suggest that Smith or his team have leaked; information could well have come from others, including targets and witnesses, and their lawyers. The point is that we’ve known an awful lot about what’s going on behind closed doors in Smith’s case. Yet, from (or about) Robert Hur: nothing. 

So what can we discern from the sparse public record about Hur’s case? We still don’t know for sure, of course – it’s Ok to say that, as I wrote last week – but we can glean clues if we look closely enough.

Hur has been at work for over eight months now. (Thanks to an official “Statement of Expenditure,” we also know that Hur’s office spent precisely $615,962 from inception through the end of March – including $300 on office supplies, which seems eminently reasonable. This, folks, tells us… Well, nothing.) Eight months seems, well, not inexplicably excessive – but it’s starting to feel a bit long in the tooth. There’s no science behind this; different prosecutors move at different speeds, and sometimes investigations take longer or shorter than initial expectations. But we do have two relevant guideposts here. 

First, it took almost the exact same amount of time – eight months – from the appointment of Smith as special counsel (in November 2022) until he indicted Trump on the Mar-A-Lago documents and obstruction case (in June 2023). Less than two months later, in early August 2023, Smith brought his second Trump indictment, for 2020 election subversion. So, measured against Smith’s work, Hur seems to be taking an awfully long time, given the comparatively narrow set of facts in his purview. If Smith could bring two complex cases to indictment in eight and nine-plus months, respectively, it’s difficult to imagine why Hur would need eight months (and counting) for his inquiry into why Biden kept a few dozen documents in his garage and his long-abandoned private DC office. It could be that Hur just works (way) slower than Smith. That happens. Or it could be that Hur ran into unexpected, and publicly unknown, complications. 

Second, we know that the Justice Department opened an investigation of Mike Pence’s possession of classified documents at around the same time as the Biden inquiry. But DOJ formally closed the Pence case, without charges, less than five months later. Different prosecutor, not Hur. So, while the Biden and Pence cases looked similar on the surface – two former vice presidents, both in possession of classified documents, apparently largely inadvertently or unknowingly – Hur has now taken nearly double the time that it took DOJ to complete and close out the Pence case. 

Both of these comparisons (to Jack Smith and the Mike Pence case) would give me pause if I were representing Biden. I wouldn’t be outright worried; it still seems like the most likely scenario is that Biden lacked criminal intent as to the classified documents. But I’d be thinking about making a little exploratory call over to Robert Hur: Hey Bob, is there anything I need to know here? 

At some point, Hur will wrap up his work. Of course, he cannot indict Biden, a sitting president, even if the evidence merited prosecution, pursuant to longstanding Justice Department policy. But, under the special counsel regulations, Hur must furnish the AG with a report on his findings and his “prosecution or declination decisions.” The AG, in turn, can (and likely would) make the report public. 

I can see three potential outcomes here: (1) Hur might conclude unambiguously that no charges are warranted, (2) Hur might offer up a Mueller-esque mishmash of noncommittal bureaucratic word salad: We can’t charge him with a crime because he’s the sitting president, and I would exonerate him if I could, but I can’t, but I also won’t state clearly that I believe he committed a crime, because he can’t be indicted so he can’t defend himself, or (3) Hur could state unambiguously that he believes the evidence does support criminal charges against Biden or somebody else, but he can’t charge now, while Biden holds office. 

I’ve intentionally presented those potential outcomes in descending order of likelihood. I’d still be stunned if Hur came out with anything but the all-clear option (1) above. But the longer this drags on, and the more radio silence with it, the more I’m wondering if we could be in for a surprise.

Biden heads into the heat of the 2024 presidential election with a simmering rangetop of pending criminal and other inquiries. He might well get impeached  by Congress; as unwarranted on the known evidence and politically self-destructive as that may be for House Republicans, the extreme wing seems intent on forcing the issue. Hunter Biden seemingly will soon face at least one felony indictment from DOJ on a gun charge, and David Weiss didn’t seek special counsel status to leave it at that and go home. And Joe Biden might lose a little sleep about whatever Robert Hur might be up to. 

There’s no comparison between the conduct that landed Donald Trump with four indictments and whatever Biden has done, even in the worst case scenarios for the current President. But Biden isn’t sailing into the 2024 election without cause for lingering, and growing, concern. 

Stay Informed,

Elie

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