Assessing the Report of Special Counsel Robert Hur on President Biden’s Retention and Disclosure of Classified Information
In a House judiciary committee hearing Tuesday, Robert Hur, the special counsel appointed by Attorney General Merrick Garland to investigate President Biden’s retention of classified documents, defended his recommendation against prosecution. Hur’s report to the Attorney General has proven controversial because the recommendation turns heavily on Biden’s allegedly faulty memory and age, a central Trump campaign theme. The report assesses that a jury could view the president as a “sympathetic, well-meaning, elderly man with a poor memory.”
The president’s supporters contend that the report gratuitously caricaturized the president as borderline senile. Despite numerous reasons why charges would be inappropriate— reasons the report could have stated succinctly—they contend that Hur, a Republican, used the report to damage the president.
The president’s opponents, including Trump, have seized on the report’s characterizations to buttress their attacks on Biden’s fitness. They also contend that Hur gave Biden a pass based on his memory.
Hur’s report has not been subject to careful legal scrutiny. The Department of Justice regulations that govern special counsel appointments grant the special counsel significant independence. As a result, it is difficult for the Attorney General to exercise appropriate control over the content of such a recommendation. Normally, an important prosecution decision would be subject to multiple layers of review, including by the Criminal Division or the National Security Division. None of that oversight applies in the special counsel context.
Hur’s report should be examined according to principles that guide the activities of all Department of Justice prosecutors, including special counsels. The Department of Justice’s principles of federal prosecution are simple and straightforward. A federal prosecutor should only bring charges where the admissible evidence is sufficient to establish guilt beyond a reasonable doubt and an unbiased jury would likely convict. That is the minimum requirement. The prosecution must also serve a substantial federal interest. And the prosecutor must consider all of the facts surrounding the conduct, including the treatment of similar conduct.
The report should also be examined under the long-standing unwritten principles that guide how significant recommendations like this should be presented. It is particularly important to establish at the beginning the key legal and factual issues. The discussion of the conduct and the evidence must be relevant to the potential offenses. And each element of each potential offense must be addressed.
These written and unwritten principles reinforce each other. Where a prosecution recommendation will be released publicly—which only happens in the special counsel context—these principles should be followed closely. They ensure that the legal issues are clearly explained and that only relevant evidence necessary to evaluate potential charges is presented to the public. Extraneous facts and characterizations can confuse the public and unnecessarily prejudice individuals. These principles are particularly important where, as here, the subject is a sitting president and the investigation is politically volatile.
The report of special counsel Robert Mueller illustrates how to apply these principles in a report that will be released to Congress and the public. Each volume starts off framing the legal questions. Volume I clarifies at the beginning that, while the terms of the Deputy Attorney General’s reference authorized the special counsel to investigate “coordination” between the Trump campaign and Russia, and many colloquially framed the question in terms of “collusion,” the proper legal framework is conspiracy. The report sets out each of the legal questions, along with a summary of its conclusions, before setting out the relevant evidence and applying that to the potential charges. Volume II does the same.
The Hur report is inconsistent with these established principles and norms. It fails to frame at the beginning the relevant legal and factual questions and fails to explain the relevance of much of the factual discussion. The failure to frame the relevant legal and factual issues at the outset causes significant confusion, a risk that should have been well understood.
Most problematic, the report suggests repeatedly that the evidence would support charges against Biden but for his faulty memory and likely jury sympathy. That mischaracterization contributes to the impression that, had Biden been less sympathetic, charges could have been brought. Those suggestions cannot be squared with the parts of the report acknowledging the more fundamental problems with the government’s evidence.
This problem starts in the second paragraph of the report. It states flatly that the investigation “uncovered evidence that President Biden willfully retained and disclosed classified material after his vice presidency when he was a private citizen.” Predictably, that was the headline. In the next paragraph, however, the report states that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.” The rest of the executive summary bases the recommendation, in large part, on the difficulty of establishing guilt to a jury, including because of Biden’s memory.
After hundreds of pages of background, the report turns on whether one statement Biden made to his ghostwriter in a rented McLean home would support bringing charges. Remarkably, the report suggests it might, but for the fact that “[s]everal defenses are likely to create reasonable doubt as to such charges” in a jury. Biden told his ghostwriter, during a meeting about a book, that he had “just found all the classified stuff downstairs.” Hur concludes that a reasonable inference could be drawn that the “classified stuff” includes all the classified material later found at Biden’s Delaware home. But the report, in a separate discussion, lists reasons why it could be the case that Biden did not in fact store the documents in McLean. Importantly, this is the only basis for seriously evaluating a prosecution because Hur rules out prosecuting Biden for retaining the material in Delaware. The report reasons that as vice president and president he was authorized to store the information there.
Despite asserting at the outset that Biden willfully retained classified information, the report goes on to state that there are “innocent explanations for the documents” in McLean “that we cannot refute.” As the report finally states on page 150, the government cannot establish the evidentiary foundation to prove a crime beyond a reasonable doubt. That is irrespective of how a jury might view the evidence or whether they might view Biden sympathetically.
The report repeatedly obscures this gap in the evidence by focusing on various “defenses” Biden could assert, even though the burden is on the prosecution and a defendant can choose not to testify. Though the evidence is nowhere close to establishing guilt beyond a reasonable doubt, the report focuses on Biden’s memory and character. It assesses that 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.” The report states that “he is someone for whom many jurors will want to identify reasonable doubt.” Perhaps it is reasonable to assume that Biden would testify in any criminal trial, but his potential testimony only becomes relevant after the government presents sufficient evidence to meet its burden. As the report concludes elsewhere, the government could not meet that burden.
Here is an example of how the report gets the analysis backward:
“Given Mr. Biden's limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter about finding classified documents in Virginia, in the absence of other, more direct evidence.”
That is the understatement of the report. Framing the question as about how a jury would react to Biden’s memory is obviously flawed. A prosecution memorandum like the Hur report must establish how the government’s burden would be met before discussing the sources of evidentiary risk that could undermine the prosecution’s case. No reasonable prosecutor would conclude that the one statement offered by Hur, from an interview with Biden’s ghostwriter, would come anywhere close to satisfying that burden.
Much of this confusion stems from the report’s failure, at the outset, clearly to frame the relevant legal and factual questions. As a result, the report presents conflicting assertions, appears to analyze the facts from the perspective of what defense might be offered at trial instead of whether the evidence can meet the government’s burden, and creates the misimpression that the principal weaknesses involve Biden’s memory and jury sympathy.
The report does not address the legal framework anywhere in the executive summary. It is not until page 15 that the report addresses what it titles the “legal framework governing classified information.” But that discussion addresses the executive orders that govern access to classified information. The question is not whether the executive order was violated, which is not itself a crime, it is whether particular criminal laws were violated. None of those criminal laws turn solely on whether information is classified. The report’s discussion of the relevant criminal laws, 200 hundred pages into the report, compounds the confusion. The report states vaguely that “evidence provides grounds to believe” Biden committed a crime but it is “not strong enough to establish [] guilt beyond a reasonable doubt.” The report then turns to “three defenses” that it assesses would create reasonable doubt in the minds of jurors. But those so-called defenses concern the government’s inability to establish with any confidence whether classified documents were stored at Biden’s McLean home.
For these reasons, the Hur report is subject to legitimate criticism. It creates the false impression that Biden may have violated criminal laws but for defenses tied to his alleged frailty. A careful reading of the report, to Hur’s credit, makes clear that the government could not establish its burden. But the report buries the lede, failing clearly to explain up front the gaps in the government’s evidence and how the evidence should be analyzed under the law. That confuses the public, heightens the politicization of the report, and does a disservice to a sitting president.