Special counsel Robert Hur will testify before the House Judiciary Committee on Tuesday morning about the findings of his investigation of President Joe Biden’s handling of classified documents. Expect the hearing to be a clown show in which Republicans try to score political points by relentlessly distracting the public from the essence of Hur’s report.
In his high-profile report which came out in February, Hur, a Trump appointee, said his investigation “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” But he concluded that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt” and determined that criminal charges weren’t warranted.
In a reasonable world, the hearing would expand upon why Biden’s behavior, while inappropriate, didn’t merit criminal investigations. Hur’s report was critical of Biden, but it concluded that the case against him was weak for a bunch of reasons.
But we don’t live in that world. Instead, we can expect Republicans to hijack the hearing and try to extract as much political fodder as they can from Hur’s comments about one of those reasons: his perceptions of Biden’s “limited” memory. When gaming out how a jury might respond to the case in his report, Hur said he believed it would see Biden sympathetically as an “elderly man with a poor memory,” a departure from the more restrained language prosecutors tend to use. Republicans have capitalized on that phrase and tried to define it as the main takeaway of Hur's report. And they're likely to try to leverage Hur’s swipes at Biden’s age to make it sound as if that observation was the primary basis for his assessment, when it wasn’t.
Hur’s report, in fact, discusses at length how the case for criminal charges against Biden had numerous holes. He notes that, as vice president, Biden “had authority to keep classified documents in his home” and that they “could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president.”
Another reason Hur decides the case against Biden isn’t airtight is that Biden could have “plausibly forgotten them at his home” after discovering them. Not because of age-related memory issues, but because it could’ve happened soon after he left the vice presidency, during which he had been able to legally view classified documents at home for eight years. “Finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event,” the report says. In order to win the case against Biden for willfully retaining the documents, prosecutors would need to establish that he did it intentionally and with the specific intent to do something that the law forbids.
Another thing Biden had in his favor was “historical practice" of past presidents. After leaving the White House, Ronald Reagan retained eight years’ worth of handwritten diaries containing top-secret information. Biden referred to Reagan’s diaries in his interview with the special counsel, explaining he thought his notebooks containing classified information were personal property. Hur thought that it was plausible Biden believed that his notebooks legally belonged to him, and that the claim would be “compelling” to a jury.
Hur does discuss that he believes Biden’s memory was “significantly limited” as captured in interviews with him and with a ghostwriter in the past, in part because of Biden's trouble recalling certain dates regarding his time in office and his personal life. And he argues that that in turn could make Biden more sympathetic to a jury and make it harder to build the case that he willfully held the documents (as opposed to holding onto them by accident). But it’s far from the only reason Hur lists for declining to bring charges against Biden.
And while age will be the focal point for Republicans, something Republicans won’t bring up at the hearing is Hur’s discussion of how Biden’s classified documents problem pales in comparison to former President Donald Trump’s case. Biden cooperated with the government in returning the classified material — he handed it over without being asked, and the number of files was small in comparison. By contrast, Trump tried to deliberately hide vast troves of classified documents after the federal government repeatedly asked for them and is suspected of obstructing justice for, among other things, allegedly trying to get people to destroy potentially incriminating evidence.
The putative purpose of the hearing is to learn about Biden’s handling of classified documents. When it’s compared with Trump’s behavior, there’s no question which person acted in more flagrant violation of the rules. But Republicans are bound to focus instead on the one part of Biden's report that could hurt Biden's re-election prospects. Don't count on the GOP to ever neglect an opportunity to try to tear down Democrats, regardless of the substance of the issue or how it might expose them as hypocrites.