Special Counsel Robert Hur leveled a devastating charge against Biden—just not a criminal one.
February 8, 2024, 4:04 PM ET
A special counsel’s report into Joe Biden’s handling of classified material released today has good news for the president, and very bad news.
The good news is that Robert Hur did not recommend charges against Biden, likely spelling the end of any legal jeopardy for sloppy storage of documents, though the report says that “the practice of retaining classified material in unsecured locations poses serious risks to national security.”
The very bad news is that Hur delivered a devastating portrayal of Biden’s mental acuity, saying any jury would view him as “a sympathetic, well-meaning, elderly man with a poor memory.”
Speculation about the extent to which Biden, the oldest president in American history, has lost a step has already been rampant. The president’s critics, including former President Donald Trump and many Republicans, have depicted Biden as senile. The president’s allies insist that he remains sharp, pointing to his record of accomplishments and, perhaps less charitably, suggesting that his long history of verbal slip-ups and gaffes shows little has changed.
Hur’s report makes the case that Biden’s faculties are diminished. The prosecutorial team reviewed recorded interviews with a ghostwriter for Biden’s book. “Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries,” the report states. It goes on to describe his interview with the special counsel this way:
In his interview with our office, Mr. Biden’s memory was worse. He 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. Biden cited approvingly in his Thanksgiving memo to President Obama.
A response letter from Biden’s attorneys, included in the report, shows the president’s team understands the danger of these claims. While the letter applauds the decision not to charge Biden, it fiercely disputes the report’s characterization of his mental state.
“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate. The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events,” the lawyers write. They complain that other witnesses’ lapses in memory are not treated with the same pejorative tone, and say that Biden’s interview occurred the day after the October 7 attacks in Israel, so the president’s attention was elsewhere. “I was so determined to give the Special Counsel what they needed,” Biden said in a statement, “that I went forward with five hours of in-person interviews over two days on October 8th and 9th of last year, even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis.”
What the letter does not say, but Biden allies will say elsewhere, is that Hur, a U.S. attorney in Maryland, is a Trump appointee. Attorney General Merrick Garland chose Hur in part to avoid any appearance of political bias in the investigation. Hur’s recommendation against charging Biden risked arousing the fury of the former president’s supporters, who are incensed that Trump has been charged for his own retention of classified documents. But his characterization of Biden’s mental acuity has instead seized attention.
So Biden’s attorneys have a point: The report does seem written in such a way as to make Biden look bad. The problem for Biden is that it is very effective at it.