If President Biden was unfairly maligned in Special Counsel Robert Hur's report, then why not let America see the evidence?
Hur's comments were not 'unusual': John Yoo
Former Deputy Assistant Attorney General John Yoo reacts to the special counsel saying the president has 'poor memory' on 'Your World.'
Joe Biden reacted angrily to Special Counsel Robert Hur’s conclusion that the president has "diminished faculties" and "poor," "faulty," and "hazy" memory – all of which Hur claimed supported not bringing charges for Biden’s mishandling of classified information. "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," Hur wrote.
In response, Biden insisted at a press conference last week that "my memory is fine," and said he believes he remains the most qualified person to serve as president. "How in the hell dare he raise that?" Biden asked, about Hur’s comments regarding his son’s death, saying he didn’t believe it was any of Hur’s business although Biden himself often mentions it in his speeches.
Biden’s surrogates aggressively criticized Hur’s report as "unseemly," "gratuitous," and an "abuse of power," and Biden himself criticized Hur as a "Republican counsel." Biden also reportedly told his aides and outside advisers that Garland did not do enough to "rein in" Hur’s report and demand that Hur edit out any politically embarrassing sections.
There is an easy solution to quell the Sturm und Drang caused by Hur’s evaluation of Biden’s mental fitness to stand trial. Biden should order Hur and Merrick Garland to release any and all transcripts and audio or video recordings, including Biden’s 5 hours of interviews with the Special Counsel’s team, which were done under oath, with redactions for only national defense information.
If neither Garland nor Biden will order the release of the special counsel’s investigatory material, Congress may have to apply legislative pressure to reveal the information on Biden’s mental fitness.
Federal regulations governing special counsels required Hur to explain his thinking, in writing, behind his decision to decline prosecuting both Biden and his ghostwriter, Mark Zwonitzer. Those regulations also grant only to Garland the authority to release or withhold any portion of the report, including Hur’s observations about Biden’s mental status or, indeed, the entire report.
Thus, Garland, not Hur, ultimately authorized the public release of the entire report. If Garland believed that Hur had mischaracterized Biden’s interview answers, he could have redacted comments about them or at least provided his own commentary or summary – as Attorney General William Barr did when he received the Robert Mueller’s special counsel report into the Trump-Russia hoax.
Attorney General Merrick Garland speaks with reporters during a news conference at the Department of Justice, Wednesday, Dec. 6, 2023, in Washington, as Secretary of Homeland Security Alejandro Mayorkas, left, and FBI Director Christopher Wray, look on. (AP Photo/Mark Schiefelbein)
Garland also could release the underlying transcripts, recordings, and videos which Hur cited in the report’s footnotes. Moreover, President Biden, as chief law enforcement officer under the Constitution, has the ultimate authority over the Justice Department and could order the public release of transcripts, recordings, and videos of his special counsel interview.
If Hur’s report truly is not "accurate or appropriate," as Bob Bauer’s (Biden’s personal lawyer and Obama’s former White House counsel) and Richard Sauber’s (White House Special Counsel) joint letter to Hur alleges, then releasing those transcripts and videos will prove it.
On Super Bowl Sunday, Bauer stated on CBS’s "Face the Nation" that Hur’s report was "shabby and shoddy" and that Bauer instead recalled "a president who engaged with the questions very directly and gave his best recollection," although Bauer became noncommittal when asked if he would agree to release of the transcripts.
If neither Garland nor Biden will order the release of the special counsel’s investigatory material, Congress may have to apply legislative pressure to reveal the information on Biden’s mental fitness. Either the House or Senate, or perhaps both, will certainly call Hur to testify. They will zero in on Biden’s memory and performance during the interviews. But they could also highlight areas where the special counsel may have let Biden off easy.
BIDEN GHOSTWRITER ESCAPES SPECIAL COUNSEL CHARGES DESPITE DELETING EVIDENCE
Hur’s report, for example, lays out sufficient evidence that Biden violated federal law when he either intentionally or recklessly took classified information and stored it in unsecured places, such as the garage of his personal residence. Hur should explain why Biden’s failing memory should free the president from prosecution.
Congress could press even further. Judiciary committee members could ask Hur why he did not subpoena or order a search warrant raid on the University of Delaware, which apparently has more than 1,850 boxes of Biden’s senate papers and 415 gigabytes of electronic files that Biden "gifted" to it in 2012, which almost certainly contain classified documents given Biden’s history of improperly removing classified documents and notes from a SCIF while he was a senator for 36 years (1973 – 2009).
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They could ask Hur about Biden’s 2017 ghostwriter recordings where the report describes Biden as "painfully slow," or to read the portions of the transcripts that refer to Biden’s memory lapses, such as forgetting when he was vice-president. In fact, they could ask Hur whether Biden was truly forgetful of milestone events or whether he was as "engaged" and astute as his lawyers and surrogates claim.
They could also ask Hur about the ghostwriter’s intentionally deleting certain files. If Hur is really the partisan that Biden’s people allege, then they would not want him to be the sole testifying witness regarding Biden’s memory; instead, they’d want the American people to see the truth for themselves.
While Garland has not publicly defended the special counsel and has been keeping a very low profile, releasing the transcripts, recordings, and videos would provide a much clearer picture as to why Hur declined to prosecute, and whether Biden truly presented as a "sympathetic, well-meaning, elderly man with a poor memory," instead of a sharp, in-control leader with whom his press secretary, Karine Jean-Pierre, claims that she "can’t even keep up" and whom the first lady, in a post-report fund-raising pitch, stated does "more in an hour than most people do in a day."
President Joe Biden speaks in the Diplomatic Reception Room of the White House on Thursday, Feb. 8, in Washington, D.C., following the release of Hur's report. (AP/Evan Vucci)
Hur’s report, in and of itself, does little to assuage concerns that the DOJ treated the Biden and Trump classified documents cases differently, and concealed Biden’s problems from November 2, 2022, through January 9, 2023 – and thus the November 8, 2022, midterm elections.
Releasing the transcripts, recordings, and videos (with national defense information redactions) would go a long way in demonstrating the transparency that Biden claims he and his administration prize.
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John Yoo, co-author of The Politically Incorrect Guide to the Supreme Court, is a law professor at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution.
