Special counsel Robert Hur announced that the Department of Justice would not be pressing charges against President Joe Biden for retaining classified documents after his vice presidency ― but the conservative jurist got in a few digs on Biden’s mental acuity and age in the process.
In a report completed on Monday, but released to the public on Thursday, Hur, a former U.S. attorney appointed by Donald Trump, cited Biden’s “significantly limited” memory in his explanation of why he was not indicting the 81-year-old president.
“Mr. Biden’s memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023,” Hur wrote. “And 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.”
Hur also said that Biden’s advanced age ― at a trial that would not take place for years ― would make him more sympathetic to a potential jury, dimming the chances of a conviction.
“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt,” Hur wrote. “It would be difficult to convince a jury that they should convict him ― by then a former president well into his 80s ― of a serious felony that requires a mental state of willfulness.”
Hur’s comments about Biden’s age and mental acuity are likely to become fodder for political attacks by former President Donald Trump, the prohibitive favorite for the Republican presidential nomination. Trump, 77, has seized on Biden’s verbal gaffes to argue that he’s too old to serve as president.
Biden addressed those assertions during a briefing on Thursday, telling reporters his memory was “fine” and angrily rejecting claims that he willfully retained any documents.
The documents were in a filing cabinet “in my house,” Biden said, “It wasn’t out there like in Mar-a-Lago, in a public place. I wish I had paid more attention to how the documents were being moved, I thought it was being moved into the archives, I thought all of it was being moved.”
“They made a firm conclusion,” he added of the special counsel. “I did not break the law, period.”
The president was particularly frustrated by a claim in Hur’s report that he couldn’t remember when his son died.
“How in the hell dare he raise that,” he added.
Biden’s attorneys registered their objections to Hur’s characterization of Biden in a written response appended to Hur’s report.
“We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” wrote Richard Sauber, special counsel to the president, and Bob Bauer, personal counsel to Biden. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.”
Sauber and Bauer elaborate on their complaint, arguing that given Hur’s conclusion that there is insufficient evidence of Biden’s guilt to merit criminal charges, it is “entirely superfluous” to opine on how a jury would react to his age and bearing. They also accuse Hur of holding Biden to a higher standard than other witnesses in the investigation who likewise had trouble remembering the events in question.
“The President’s inability to recall dates or details of events that happened years ago is neither surprising nor unusual, especially given that many questions asked him to recall the particulars of staff work to pack, ship, and store materials and furniture in the course of moves between residences,” Sauber and Bauer wrote. “The same predictable memory loss occurred with other witnesses in this investigation. Yet unlike your treatment of President Biden, your report accepts other witnesses’ memory loss as completely understandable given the passage of time.”
President Joe Biden, 81, is eager to dispel voters' concerns about his advanced age. The special counsel's report could make that harder.
In addition, they note that Hur conducted his interview with Biden on Oct. 8, a day after the deadly Hamas terror attack against Israelis that completely upended the foreign policy arena and were a source of major preoccupation for Biden.
“In the lead up to the interview, the President was conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team,” the lawyers wrote.
A number of prominent Democrats likewise reacted with outrage to the report’s commentary on Biden’s age.
“There’s certainly no crime in being a well-meaning elderly man,” Sen. Richard Blumenthal (D-Conn.) told HuffPost. “[Hur’s] mandate was to judge whether a crime was committed...not speculate on what the jury would do, not to speculate on how full or sharp Joe Biden’s mind is.”
Sen. Chris Coons, a Democrat from Biden’s home state of Delaware, told HuffPost that Hur “went a little far” and that his characterization of Biden “doesn’t reflect the man who I was with twice last weekend.”
Jeff Hauser, executive director of the progressive Revolving Door Project, noted that Hur had clerked for conservative judges and blamed Attorney General Merrick Garland for Hur’s appointment.
“What was Merrick Garland thinking? Biden isn’t senile, but he is far too trusting in centrists like Orrin Hatch favorite Merrick Garland,” Hauser wrote on X.
Tommy Vietor, a former Obama administration spokesperson, likened Hur’s disparagement of Biden in a statement about not prosecuting him to then-FBI Director James Comey’s stern admonishment of then-Democratic presidential nominee Hillary Clinton in an announcement that he would not press charges over her use of a private email server.
“Robert Hur clearly decided to go down the Jim Comey path of filling his report absolving Biden of criminal activity with ad hominem attacks, like calling him an “elderly man with poor memory,” Vietor wrote on X. “Not remotely subtle. Just a right-wing hit job from within Biden’s own DOJ. Wild.”
Of course, Comey lit into Clinton on television, rather than in writing, and did it mere days before her election against Donald Trump. Biden’s reelection fight is still many months away.
Igor Bobic and Nick Visser contributed reporting.