Legal relief, political nightmare
Thursday's decision not to criminally charge President Biden for mishandling classified documents should have been an unequivocal legal exoneration.
Instead, it was a political nightmare.
The investigation into Mr. Biden's handling of documents after he was vice president called him a “well-meaning, older man with a poor memory” and described interviews in which he could not remember when he was vice president and in which year his son died. or who he agreed with during policy debates.
The memory of the then 80-year-old president was so hazy during five-hour interviews with FBI investigators over two days, the report by Robert K. Hur, the special counsel, that it would be difficult to convince jurors that Mr. Biden knew his handling of the documents was wrong. Mr. Hur predicted in the report that if the president were indicted, his lawyers would “highlight these limitations in his recall.”
In part because of Mr. Biden's memory, Mr. Hur declined to recommend that he indict the president for what the report described as the deliberate preservation of nearly seven million pages of national security secrets, including some documents shared by the president that contained “sensitive intelligence sources and methods.”
“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 crime requiring a mental state of willfulness,” Mr. Hur wrote.
In his own statement, Mr. Biden seemed to suggest a reason why he was distracted.
“I was so determined to get the special counsel what they needed that on October 8 and 9 last year I did five hours of in-person interviews over two days, even though Israel had just been attacked on October 7 and I was in the middle in tackling an international crisis,” he wrote. “I just believed I owed that to the American people.”
The president's lawyers, Bob Bauer and Richard Sauber, objected in a Feb. 5 letter detailing Mr. Hur's description of the president's memory.
“It is unfair to admit that asking the President about past events, pressuring him to give his 'best' memories, and then blaming him for his limited memory,” the lawyers wrote. “The president's inability to recall dates or details of events that occurred years ago is neither surprising nor unusual.”
Concerns about Biden's age have been a recurring theme of his presidency over the past three years. Fueled in part by a video of the president appearing weak or stumbling in public, many voters have raised concerns about his mental and physical fitness as he tries to remain in the White House until he is 86 years old.
During fundraisers on Wednesday, Mr. Biden twice recalled a 2021 conversation with Helmut Kohl, the former German chancellor, who died in 2017. His spokeswoman later said he had made a mistake, as many government officials do.
Mr Biden has tried to laugh off the issue, insisting that wisdom comes with age. And his aides have repeatedly emphasized that despite the way the president sometimes appears in public, he remains sharp and tireless when in private, in conversations with aides or in meetings with foreign leaders.
But the report released Thursday disputes those descriptions, not by relying on short clips of Mr. Biden posted on social media, but rather on hours-long interactions with the president in controlled environments. And the descriptions of his memory were more vivid than what is normally found in legal documents like those released Thursday.
Biden's political rivals, including former President Donald J. Trump, who has had his own string of unforced blunders, are sure to seize on the report's detailed conclusions as evidence that he is too weak to lead the country for another five years. .
In the report, Mr. Hur wrote that in a 2017 recorded conversation between Mr. Biden and the ghostwriter for his book, Mr. Biden struggled to “remember events” and “sometimes struggled to read his own notes in his notebook and to pass on'. Mr Hur said the 2023 interviews with investigators were even worse.
“He couldn't remember when he was vice president, forgot on the first day of the interview when his term ended ('if it was 2013 – when did I stop being vice president?'), and forgot on the second day of the interview when his term began ('am I still vice president in 2009?'),” the report said. “He didn't even remember when his son Beau died within a few years.”
Mr. Hur was nominated by Mr. Trump to be U.S. attorney in Maryland, but was later chosen by Attorney General Merrick Garland to lead the investigation into Mr. Biden's handling of classified documents.
Mr. Biden's lawyers have argued for more than a year that the discovery of classified documents in Mr. Biden's office and Delaware home was nothing more than an accidental mistake, and certainly not criminal conduct like the 37 charges against the Mr Trump for his actions. handling classified material after leaving the office.
On Thursday, the special counsel reached the same conclusion, a fact celebrated at the White House and at the president's reelection campaign headquarters, where aides are preparing for a fierce battle to prevent Trump's return to the White House.
But the report refuted the long-standing argument from the president's lawyers that Biden never compromised the country's national security. Investigators found documents at Mr. Biden's home in a “box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped in duct tape, potting soil and synthetic firewood.”
While concluding that “the evidence does not prove beyond a reasonable doubt Mr. Biden's guilt,” Mr. Hur nonetheless wrote that Mr. Biden took classified documents and notebooks on Afghanistan with him in 2016 after leaving the vice presidency, and shared some of them. documents with his ghostwriter.
Mr. Hur's tough language could set the stage for Mr. Trump and his allies to launch a new round of political attacks on Mr. Biden for doing exactly the same kinds of things Mr. Trump is accused of doing. And it is likely to complicate months-long efforts by Mr. Biden and his advisers to draw a sharp distinction between the two presidents' actions.
But the most searing political damage will likely come from Biden's age, which many veteran Democrats say is already the president's greatest weakness. Some have said privately that they feared something would happen that would remind voters of the age issue, including the possibility of a fall or a mental stumble.
Republicans almost immediately began using the report to attack Biden, sometimes going far beyond the prosecutor's factual conclusions.
Senator Marco Rubio, Republican of Florida, incorrectly said on social media that “the special counsel has decided not to file charges against Biden because they believe he has age-related dementia.”
In some ways, Thursday's report was the worst of all worlds: an official description of Mr. Biden behind the scenes, suggesting that stumbling blocks come with age.