It’s a misguided focus. Too little has been said about the Department of Justice’s central reason, as described in the report, for declining to issue a charging recommendation against the president: his lack of culpability. It’s in stark contrast with the superficially similar other recent case, Donald Trump’s alleged criminal mishandling of classified documents following the end of his presidency.
The key fact in Biden’s case is that he cooperated fully in retrieving, turning over to the FBI, and answering all questions about classified documents in his possession, upon his lawyers’ discovery of such materials in January 2023. Contrarily, as the report emphasizes, Trump is charged with obstructing the government’s 2022 efforts to retrieve all highly classified documents he willfully retained at Mar-a-Lago. He refused to disclose them, provide full information about them, or return them.
That is why a grand jury indicted Trump in August 2023 for obstruction of justice. The difference with Biden’s cooperation couldn’t be clearer. Full cooperation signals to prosecutors a person without a criminal state of mind. That’s plainly the real reason why Hur, a former Trump-appointed United States attorney, recommended against prosecuting Biden.
Hur’s 340-page report was released on Thursday. It was the result of a 13-month investigation over the classified documents that President Biden’s lawyers found in his office and home last year after Biden instructed them to conduct the search and then to voluntarily return all such documents.
In another sharp contrast with Trump, Biden also cooperated fully and transparently in Hur’s investigation of how it happened. The president even declined the opportunity to redact embarrassing information from the report. Most tellingly, Biden did not even assert executive privilege during his two-day interview with Hur in October.
There is no mystery about what Trump would have done if still president. He refused to be interviewed when special counsel Robert Mueller investigated the Trump campaign’s cooperation with Russia during the 2016 election. And Trump’s voluminous history of unsuccessfully asserting executive privilege to shield truth from the American people could fill his presidential library.
Biden’s transparency about such information—and his full cooperation in an investigative process that holds a president to public account—was a model for the way honest public servants should conduct themselves in confronting their own mistakes.
Conversely, Trump doubled down on far more serious misconduct. For example, he stored highly sensitive national security secrets in places accessible to his country club visitors—and allegedly continued to lie and scheme about them, moving classified documents from place to place to conceal them from federal authorities.
So let’s recognize as partisan talking points the Republican claim that there is some kind of “double standard” in Hur’s declining to prosecute Biden while a Florida grand jury has indicted Trump for obstructing an investigation. This views the special counsel report through a distorted lens for Republicans’ partisan advantage.
That’s not to say Biden’s handling of the documents was acceptable before he returned them. Hur’s investigation uncovered a February 2017 conversation between Biden and his book ghostwriter. In it, Biden said that he had ‘just found all the classified stuff downstairs.’”
Biden should have immediately returned the documents. In interviewing Biden, Hur found the president’s memory of the events from 2017 less than clear, which he characterized as indicative of Biden’s age and mental acuity. Memories, however, about events six years earlier are often incomplete, even by witnesses much younger than Biden. Lawyers soundly advise witnesses to say “I don’t recall” if they have any doubt.
Incomplete recollection was indeed part of Hur’s reasoning for concluding that the evidence failed the Justice Department’s standards for a prosecution.
Mr. Biden would likely present himself to a jury … as a sympathetic, well-meaning, elderly man with a poor memory… It would be difficult to convince a jury that they should convict him.
Biden pushed back hard Thursday on Hur’s description. No doubt Hur provided fodder for Trump and his allies. Doing so was completely unprofessional. The American Bar Association standards of prosecution state:
The prosecutor may make a public statement explaining why criminal charges have been declined or dismissed but must take care not to … prejudice the interests of … . subjects of an investigation.
For all the world it looks like Hur learned the wrong lesson from what happened with Hunter Biden’s special prosecutor, David Weiss, another Republican, after MAGA world went after Weiss for negotiating a plea deal with Hunter Biden that conformed to prior DOJ settlements of prosecutions for the same crimes. Hur seems to have had a goal of preempting similar attacks on him for exonerating Biden the father—by feeding red meat to MAGA wolves.
A frightened prosecutor is a failed prosecutor.
For those concerned about the rule of law, it is important to keep our eye on the ball. President Joe Biden corrected his error and cooperated. He did not obstruct. That is why he is not being prosecuted.
In other words, after making mistakes in 2017, he behaved during this investigation like a president who does not consider himself above the law. That is the polar opposite of Donald Trump.