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Republicans Distort Facts on Special Counsel Decision Not to Charge Biden

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At their weekly news conference, several Republican House leaders wrongly claimed the special counsel report into Joe Biden’s handling of classified documents found the president was mentally unfit to stand trial. The report said no such thing.

Special Counsel Robert Hur’s report ultimately concluded “the evidence is not sufficient to convict” Biden and that “no criminal charges are warranted.”

The report did refer numerous times to what it characterized as Biden’s “limited” and “poor” memory. Those observations were included, Hur wrote, because they factored into his decision about whether he could convince a jury that Biden had acted “willfully” to break the law. And the special counsel wrote that Biden’s age and memory might make him a more sympathetic witness, causing a jury to give him the benefit of the doubt.

“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,” the report said. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”

Special Counsel Robert Hur (center), who oversaw the investigation of President Joe Biden’s handling of classified documents, speaks in 2019 about an unrelated case he handled as a U.S. attorney. Photo by Mark Wilson/Getty Images.

But Hur never said Biden was mentally unfit to stand trial, a determination that requires a competency evaluation and that would not preclude a prosecutor from filing charges.

“The standard for competence to stand trial demands some recollection of events but looks as much to a defendant’s ability to consult with counsel and to understand the proceedings,” Daniel Richman, a former federal prosecutor who is now a law professor at Columbia Law School, told us via email. “The DOJ report does not offer the slightest basis for doubting Biden’s competence to stand trial, and in fact shows an interaction with investigators that would make any claim of incompetence frivolous. Hur’s focus on memory was primarily for the purpose of assessing and predicting how a jury would assess the evidence in the case.”

After the special counsel report was released, Biden and his attorneys pushed back forcefully on the report’s claims about his memory, saying they were false and gratuitous.

“They don’t know what they’re talking about,” Biden said at a press conference about the report. When a reporter asked if he thought his memory had gotten worse, Biden answered, “My memory is fine.”

Republican Claims

After Hur publicly released the special counsel report on Feb. 8, numerous Republicans seized on its comments about Biden’s “diminished faculties and faulty memory.”

For example, Rep. Marjorie Taylor Greene posted on social media, “The Special Counsel’s report exposing that Joe Biden’s mental decline is so severe that he can not stand trial means he is unfit for office.”

In their weekly press conference on Feb. 14, several House leaders echoed that sentiment and drew false distinctions between Biden’s case and the charges against former President Donald Trump.

House GOP Conference Chair Elise Stefanik: Special counsel Hur’s decision to not prosecute Biden because of his deteriorating mental state, further demonstrates the un-American two-tier justice system that exists in Joe Biden’s America. There cannot be one set of rules if your last name is Biden and another set of rules for the rest of America. And the American people know that if someone is mentally unfit to stand trial, they’re unfit to serve as commander in chief.

Rep. Ronny Jackson: I want to just state the obvious. If you’re not cognitively fit to stand trial or to answer accusations against you, you’re obviously not cognitively fit to be the president, our commander in chief, and our head of state.

Majority Whip Tom Emmer: A man unfit to be held responsible for mishandling classified information has zero business occupying the Oval Office. And it exposed the two-tiered justice system that indicted one president with politically motivated charges while carrying water for another over similar allegations.

House Speaker Mike Johnson: Remember now, the DOJ is indicting one president with politically motivated charges and they are now carrying the water for another amid very similar allegations. A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office.

But claims that the special counsel found Biden “unfit to stand trial” go well beyond what Hur wrote in his report, which also contradicts Republicans who say Trump is being prosecuted for “very similar allegations.”

What’s in the Report

The special counsel wrote that his investigation had uncovered some evidence that Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” But, the report continued, “we conclude that the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.”

At the center of the case are two sets of classified materials: marked classified documents about military and foreign policy in Afghanistan, and “notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods.”

The issue of Biden’s memory played a role in Hur’s determinations about both of those.

The Afghanistan documents were found by FBI agents in a box in the garage of Biden’s Delaware home in late 2022 and early 2023, the report said. The report cited a taped conversation with the ghostwriter of Biden’s memoir in 2017, Mark Zwonitzer, in which Biden said he had “just found all the classified stuff downstairs.” While Hur wrote that he believed Biden was referring to the Afghanistan classified documents, Hur did not believe prosecutors could prove that to a jury beyond a reasonable doubt.

“Several defenses are likely to create reasonable doubt as to such charges. For example, Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after,” Hur wrote. “This could convince some reasonable jurors that he did not retain them willfully.”

Hur wrote that Biden’s memory was “significantly limited” in recorded interviews with the ghostwriter and in interviews with special counsel investigators. And that, together with the fact that Biden cooperated fully with investigators, would “likely convince some jurors that he made an innocent mistake, rather than acting willfully — that is, with intent to break the law — as the statute requires.”

The report also said it is possible Biden, in the conversation with the ghostwriter, “could have been referring to something other than the Afghanistan documents.” And the special counsel said it was further possible the Afghanistan documents could have been stored at his Delaware home by staffers “by mistake and without his [Biden’s] knowledge.”

Also highlighted in the report were the handwritten notebooks Biden had kept. His notes were related to classified subjects, which means the notebooks themselves were classified, the special counsel report said. The report said Biden “shared information, including some classified information, from those notebooks with his ghostwriter.”

But, according to the report, “the evidence will likely leave jurors with reasonable doubts about whether Mr. Biden knew he was sharing classified information with Zwonitzer and intended to do so. For these jurors, Mr. Biden’s apparent lapses and failures in February and April 2017 will likely appear consistent with the diminished faculties and faulty memory he showed in Zwonitzer’s interview recordings and in our interview of him. Therefore, we conclude that the evidence does not establish that Mr. Biden willfully disclosed national defense information to Zwonitzer.”

There were other reasons cited in the report as to why the case was weak with regard to the notebooks. For one, the report said, Biden was convinced he was legally allowed to keep the notebooks at his home.

“During our interview of him, Mr. Biden was emphatic, declaring that his notebooks are ‘my property’ and that ‘every president before me has done the exact same thing,’ that is, kept handwritten classified materials after leaving office.”

Biden cited the diaries that President Ronald Reagan kept in his private home after leaving office, which also included classified information. Hur wrote, “If this is what Mr. Biden thought, we believe he was mistaken about what the law permits, but this view finds some support in historical practice.”

In Reagan’s case, Hur wrote, handwritten diaries that Reagan kept at his California home contained Top Secret information. Although that became a matter of public record in criminal litigation involving a former Reagan administration official, “the Department of Justice stated in public court filings that the ‘currently classified’ diaries were Mr. Reagan’s ‘personal records.’ Yet we know of no steps the Department or other agencies took to investigate Mr. Reagan for mishandling classified information or to retrieve or secure his diaries. Most jurors would likely find evidence of this precedent and Mr. Biden’s claimed reliance on it, which we expect would be admitted at trial, to be compelling evidence that Mr. Biden did not act willfully.”

In other words, there were several factors listed by Hur that convinced him it would be difficult to prove criminal charges against Biden, and Biden’s memory was just one factor.

Biden’s opponents are free to opine about whether the memory issues cited in the special counsel report speak to whether Biden is fit to serve as president — though Hur never did. But claims that the report concluded Biden was mentally unfit to stand trial are simply false.

As for the Republican claims about “two-tiered justice” when it comes to federal prosecutors pursuing a classified documents case against Trump, as we have written, Hur pointed to “several material distinctions” between the cases involving Trump and Biden.

“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts,” the report stated. “Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment, he not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation.”

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