February 21, 2024

Let me share a few thoughts on the Biden special counsel report.

First off, this is another example of the universal rule: Republican special counsels are chosen to investigate Democrats. And Republican special counsels are chosen to investigate Republicans. It may not have been a great idea for Merrick Garland to have a two-time Trump appointee investigate Joe Biden. But here we are. Robert Hur totally slimed Biden with these gratuitous comments about his mental acuity and memory, referring to him as a “well-meaning, elderly man with a poor memory.” Even if you assume they are the product of a good faith evaluation they are still wildly inappropriate.

DOJ guidelines make clear that if you’re not bringing charges you don’t bash the subject of the investigation in your announcement (a la James Comey). You certainly aren’t supposed to affirmatively attempt to demean the subject of the investigation with clearly political attacks that aren’t even related to what you’re investigating. Hur might as well have called him “Fake News Joe Biden.” It’s really that transparent and that bad.

Are we sure that Hur let his political bias get in the way of his professional judgment? Can we draw that from his background as a politically connected Republican lawyer? I don’t even think it’s a serious question. The lengthy and gratuitous comments speak for themselves. Of course he did.

The descriptions in the report sound bad because they are designed to sound bad. These are from a five hour discussion the day after the October 7th attacks on Israel when I’m sure Biden was focused on that unfolding crisis. Without watching the interview we have no way of knowing whether these are representative of the tenor of the conversation or cherry-picked gotchas.

But there’s no crying in baseball. Entirely justified outrage from Biden supporters won’t counter whatever damage these comments will have. The White House will need to get Biden in front of interviewers, where he actually does quite well, and in widely seen venues, to counter it. It’s really as simple as that.

On the merits, some of these quotes that Hur came up with really do suggest that Biden knew in some sense that he had classified material in the documents or at least made references to it being in his possession. I need to look more closely at the specifics. And it’s still a prosecutor’s brief. But that did surprise me. And not in a good way.

As Hur made clear, Reagan did something similar with notebooks he retained after his presidency. It is probably par for the course. It’s still wildly different from what Trump is charged with which is really more the willful retention, refusal to return materials and various kinds of obstruction to achieve those aims. Clearly no charges were merited. But Hur did find evidence that Biden was sloppier and more cavalier than I would have expected or hoped.