I had expressed my worries about the likely partisan slant to Robert Hur’s report on President Biden the week before it was released and became catnip for lazy reporters who didn’t read it but found its deliberately placed expressions of Hur’s personal characterizations of the President very comfortable and validating.
I had hoped that AG Garland, who had bent over backward to appear apolitical by appointing a Republican prosecutor, would make certain that Hur’s report did not become “Comey 2.0”–by eliminating personal characterizations of the person being investigated when no charges are filed. Such characterizations are clear violations of Department of Justice guidelines and practices.
But Garland had bent over so far backward that he lost his balance–to the detriment of his department and our national conversation in this political season. I now realize that he stated he would release the report exactly as he received it. That was a promise he had to keep. Otherwise, his proper and justified redactions would have been leaked anyway. Hur knew that– and appears to have exploited Garland’s promise, possibly because he was aware his failure to find the president’s actions indictable would disappoint his fellow Republicans.
AG Garland is, I believe, a well intentioned man who has not served our country well at a critical juncture.
It’s worth noting that former prosecutors have said it should be OK for Democrats to appoint Republican prosecutors and Republicans to appoint Democratic prosecutors. In reality, both Democrats and Republicans have appointed Republican prosecutors. And whereas Bill Barr managed and distorted the Mueller Report findings, Garland seems hopelessly naive in how he handled this investigation from day one.
So out came the report that was, it seems to me, a deliberate two-fold hit on Biden: making it appear he was covering up for a crime Hur acknowledged the president hadn’t committed; and using his own biased framing of the president’s responses to a five-hour interview held just one day after Biden had begun dealing with the international crisis when Hamas launched its terrorist attack on Israel.
By repeatedly putting in his personal views about the president’s memory concerning matters covering his forty-year political career, Hur fueled the understandable concerns many Americans have about Biden’s age.
I’m hoping this post helps to place perspective on both prongs of Hur’s attack–in part because so much of the press has gone nutso in mindlessly accepting and parroting them.
FIRST, A FACTUAL EXAMINATION OF HUR’S HANDLING OF THE CASE
I haven’t read the full report, but I did read Hur’s executive summary, which includes the phrase that the media latched on to:
“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”
That sounds pretty damning, and it led to a cacophony of reporters shouting questions at the president, suggesting there was no difference between what he’d done and what Trump had done–and why, then, was Trump indicted and he was not?
All of this information is wonderfully handled in an article I did read in full: “The Real ‘Robert Hur Report’ (Versus What You Read in the News) How the Special Counsel report has been misinterpreted.”
The article was written by former Mueller investigation prosecutor Andrew Weissmann, now a legal commentator and law professor, and Ryan Goodman, also a law professor and the co-editor-in-chief of Just Security, the publication in which it appeared.
It is an annotated view of all the contentious points–and if any media people are interested in the truth, it provides a forthright factual record.
Their opening:
“The Special Counsel Robert Hur report has been grossly mischaracterized by the press. The report finds that the evidence of a knowing, willful violation of the criminal laws is wanting. Indeed, the report, on page 6, notes that there are ‘innocent explanations’ that Hur ‘cannot refute.’
“That is but one of myriad examples we outline in great detail below of the report repeatedly finding a lack of proof. And those findings mean, in DOJ-speak, there is simply no case. Unrefuted innocent explanations is the sine qua non of not just a case that does not meet the standard for criminal prosecution – it means innocence. Or as former Attorney General Bill Barr and his former boss would have put it, a total vindication (but here, for real).”
“But even without the prompting of a misleading ‘summary’ by Barr, the press has gotten the lede wrong. This may be because of a poorly worded (we’re being charitable) thesis sentence on page 1 of Hur’s executive summary. (emphases mine)
“You have to wait for the later statements that what the report actually says is there is insufficient evidence of criminality, innocent explanations for the conduct, and affirmative evidence that Biden did not willfully withhold classified documents. (emphasis mine)
“Hur writes at the outset: ‘Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.’
One clue that Hur was up to no good in this report is its length. Journalist and legal commentator Kimberly Atkins Stohr pointed out in the Sisters In Law podcast that it took Hur 388 pages to say Biden did nothing worthy of indictment. Compare that to the length of Jack Smith’s indictment and full justifications for the forty-one charges against Trump in the Mar-a-Lago case: 49 pages.
So it’s worth looking at Weissmann and Goodman’s suggested revision of Hur’s findings as they should have been written and released by the Department of Justice.
“We have concluded that there is not a prosecutable case against Biden. Although there was a basis to open the investigation based on the fact that classified documents were found in Biden’s homes and office space, that is insufficient to establish a crime was committed. The illegal retention or dissemination of national defense information requires that he knew of the existence of such documents and that he knew they contained national defense information. It is not a crime without those additional elements. Our investigation, after a thorough year-long review, concludes that there is an absence of such necessary proof. Indeed, we have found a number of innocent explanations as to which we found no contrary evidence to refute them and found affirmative evidence in support of them.”
SECOND: REACTIONS TO BIDEN’S FUNCTIONING BY PEOPLE WHO HAVE OBSERVED, INTERVIEWED, OR WORKED WITH HIM
Representative Daniel Goldman was in Israel when the Hamas terrorists struck on October 7, and President Biden called him at that time. In this interview following the release of Hur’s report, Goldman recounts that conversation.
Another compelling response that appeared on Twitter shortly after Hur dropped the hatchet came from former Republican strategist and vehement Never Trumper Stuart Stevens. Stevens linked to his piece in The New Republic titled: “Just Say It, Democrats: Biden Is a Great President.”
Here are excerpts from Stevens’ article:
“A plea to my Democratic friends: It’s time to start calling Joe Biden a great president. Not a good one. Not a better choice than Donald Trump. Joe Biden is a historically great president. Say it with passion backed by the conviction that it’s true.”
“Because it is.
“Yes, the desire to see the 2024 election as a choice between a normal, stable president versus an erratic thug under indictment in multiple states is seductive. But don’t base a campaign on that contrast. Don’t go into 2024 with the game plan to win because Donald Trump is an existential threat to democracy.
“That’s true, he is, but that’s only making the case that Donald Trump shouldn’t be president. It’s not the reason Joe Biden should be reelected.
“Joe Biden should remain president because of his historic level of achievement here at home while standing on the side of freedom versus tyranny in the largest land war in Europe since World War II, a role no American president has played since the Roosevelt-Truman era. Be bold. Walk into this campaign with swagger and confidence and pride.”
“There’s not much I admire about the modern Republican Party, but I find myself wishing Democrats could learn from their eagerness to unite behind a candidate and echo a consistent message. If a Republican president had a record remotely equaling the Biden record, the only debate among Republicans would be if he should be called one of the greatest presidents or simply the greatest.
“Now considering they are doing that for Donald Trump, it is a low bar, but can we acknowledge that complaining about Joe Biden as if he were some fantasy football pick that was hurting the odds of winning the office pool is increasing the likelihood that the worst and most dangerous president in U.S. history will win again in November?
“As someone who worked in Republican campaigns for almost 30 years, I say without hesitation that the Democratic Party is the only pro-democracy party in America. But guys, why do so many of you have this need to act like ungrateful children of wealthy parents—impossible to please and always demanding more? Name a president who accomplished as much in his first term.“
Stevens cites a bunch of Biden’s accomplishments, and then says:
“What is most amazing is that Biden got this done in a world in which the majority of Republicans believe he is not a legal president. Ponder that for a minute. You are a White House staffer working to help pass Biden initiatives, and you are dealing with members of Congress and senators who don’t just disagree with your boss—they think he’s an illegitimate president.”
………
“I could go on citing the achievements of a president who actually cares about governing. All of these actions and numbers are important, but none matter as much as what Joe Biden has done to restore stability and decency to the presidency. One of the greatest gifts of a democratic civil society is the freedom not to think about government, to wake up and not worry about the mood of a leader. Joe Biden has made governing boring and predictable, both fundamental rights of the people in a healthy democracy.“
And here’s Stevens’ conclusion:
“Yes, Joe Biden is a great American president. Be proud of this president, Democrats. Be proud that you live at a time when America needs you to rise to her defense. None of us can choose history, but history chooses us.
“When America once again needed a quiet American hero, Joe Biden has met the moment. Now it is up to the rest of us not to falter. Certainty and conviction will bring victory, while doubt and hesitation invite defeat.”
Stevens’ message reminded me of similar words I heard from former Republican National Committee chairman Michael Steele, also a pro-Biden Never Trumper. In essence, he said to Democrats something like: “You look at this economy, and you complain the man is old?”
Finally, I just came across David Rothkopf’s piece in The Daily Beast. I’m a big Rothkopf fan: I reprinted one of his pieces about Biden and have quoted him before. I think this article is especially important.
Its title: “Democrats Have to Stop Living in Denial About Biden’s Age.”
I started to write a quick summary, but as I don’t feel I can do justice to Rothkopf’s piece, I hope you’ll bear with me in quoting more than I’d intended.
The age issue isn’t going away, he says wisely, and we all have to accept that fact, deal with it and “own” who Biden is. Some of these suggestions involve staging advice for Biden staffers, such as to put him in more “informal unstaged videos” on social media. (Check! The Biden campaign just launched his TikTok account and put a fun Super Bowl exchange on it.)
“Show him interacting with people. Show his humor. Show his compassion. Show him with members of his team–who are younger, vital, and immensely capable.”
Importantly, Rothkopf says we need to see Biden’s second term agenda, and Rothkopf quotes Democratic strategist Simon Rosenberg that the emphasis should be less on finishing the job and more about preparing us for the years ahead.
The president should be surrounding himself with the up-and-coming leaders, such as Michigan Governor Gretchen Whitmer, California Governor Gavin Newsom, House Democratic Leader Hakeem Jeffries, and Florida Representative Maxwell Frost (the youngest member of Congress).
Rothkopf says: “Biden is a patriarch. Let him play that role. Let him, as Simon puts it, ‘lean into the generational transition, be the enabler of it,’ acknowledging this is his last act and he sees his responsibility as setting the stage for what comes next.”
Of course he says Biden should take on Trump (as I think the president has been doing quite effectively, getting under that paper-thin skin.) “A good viral jab at the MAGA menace is worth a thousand rides in the Delaware beach.”
Rothkopf believes it’s less important for Biden to focus on his many admirable accomplishments than to show what he’ll do in his next term, “demonstrating (not just saying) that he provides the best way to preserve for tomorrow the freedoms they [voters] value today.”
Here’s the kicker:
“…the message I am describing is already being delivered very effectively, to cheering crowds, to standing room audiences, to key voting groups like young people, women, and people of color.
“And it is being delivered by the one person who is the single best reason to feel secure about having a president who is admittedly older, the person who answers all the ‘what if’ questions no one wants to ask. It is being delivered by the most prominent and accomplished member of the next generation of American leaders.
“That person is, of course,* Vice President Kamala Harris.(emphasis mine)
“Vice presidents are always the country’s insurance policy regarding all the possible twists of fate that may make it difficult for a president to serve. Harris has been at Biden’s side for three years and is undoubtedly the single best-equipped person in the world to succeed Biden and carry forward his legacy.
“In recent months, it has become clear that she has become the administration’s best champion on the biggest issues of this election year.
“She is the woman, trained all her life as an advocate, who has crowds cheering as she talks about the Biden administration’s commitment to defending their fundamental freedoms against the threat of Trump and MAGA.
“She is the most powerful voice in the administration on restoring to women their rights to control their own bodies, on combating senseless gun violence, on ensuring voting rights are protected (especially for people of color), on battling Big Pharma to bring prices down for all who depend on medicine to live.
“Playing this role so effectively in state after state, at historically Black colleges and universities and in small group sessions with citizens, has produced a long-overdue and accurate reassessment* of her as the administration’s greatest asset other than the president.
“Indeed the reason the Republicans attack the vice president so vigorously is not just that they are racist and misogynist—although they are. It is that they understand that with an older president, faith in the vice president is a crucial ballot box consideration.
“They want to undermine her. They need to undermine her. Unfortunately for them, Joe Biden understood that, understood the vice presidency from personal experience, and picked a candidate who could be a full partner, a national and international leader, and ultimately, at some point, his successor.
“The outsize role Harris will play in 2024—must play, should play—will not only prove an asset as it did in 2020, but is among the very best ways that Joe Biden can demonstrate the vitality of his administration and silence critics.
“Her role as the leader of the first-rate next-generation team that Biden has assembled to carry out his agenda also underscores the future orientation and strengths of Team Biden—and will surely contrast well with Trump’s crew if they are anything like his last administration (and they’re projected to be even worse).
“Democrats seeking to boost Biden would do well to understand the above, and rather than denying that Biden is old or complaining that anyone is pointing it out—embrace his wisdom, his vigor in defending what is best about America from the threats we face from Trump, and the quality of his team beginning with Vice President Harris.
“After all, in 2024 the issue can’t really be the age of the candidates. Both will be old. Rather, it will be the age of those they will best serve—a choice between Trump who will cater to his country club buddies and Biden and Harris who will serve the next generation of Americans.“
(The asterisks follow links to two interesting articles with more information about VP Harris. I have also written about her here and here.)
I hope you’ve stayed with me through this longer-than-usual post, and I’m most eager to hear your thoughts.
Annie
annieasksyou... 
Way to go, annieasksyou! So well spoken, and very patient about the situation, which causes me to almost spit in outrage, rather than being articulate in explaining. I’m thankful you’re out here being articulate and patient!
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Aw, thank you, ali register & vote! redford, who is our constant reminder of our democratic responsibilities!
I had the benefit of a plethora of good sources to choose from and had to stop myself from adding more.
My patience grows thinner by the nanosecond, actually.
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Cheaters gonna cheat. The GOP cheat. This is just one more way they do it.
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They sure are exceeding downward expectations, Polly!
FYI: after reading your post explaining your very understandable cutting back on political blog posts, I am grateful whenever you like/comment about one of mine.
Take good care!
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Well, the thing is … it’s hard to break long-standing habits. & I’ve been into politics since I was a little kid.
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I appreciate that. And I understand about longstanding habits. I still subscribe to the damn NYT!
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Nicely done. Sequential and compelling, as always. He is a great president, pure and simple. I am seething, so agree as one of your readers put it, that you manage to put things out far more calmly. That’s the joy of the facts on your side! And agree, our AG dropped this one. Well intentioned as you say, but not a winning strategy here.
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Is that what Occam’s razor says about merrick garfield?
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Doesn’t Occam’s razor apply to avoiding unnecessary stuff, MDavis? I’d said I thought Garland had bent over backward to the point where he’d lost his balance. In terms of Occam’s razor, I think he was standing it on its head.
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Well. I looked it up to get the phrasing right, and it turned out that it is “the problem-solving principle that recommends searching for explanations constructed with the smallest possible set of elements” from Wikipedia.
So, yes, it is a method of searching for the simplest solution to a problem.
Occam’s razor is also “a principle from philosophy. Suppose an event has two possible explanations. The explanation that requires the fewest assumptions is usually correct.” That’s from Simple Wikipedia, which I find amusing.
This reads, to me, like trying to figure how/why something came about rather than trying to figure out how to accomplish something.
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Thanks, Denise. Alas, I think Biden chose Garland because he knew he’d be apolitical. He was a highly respected professional who got a raw deal, courtesy of the malevolent but oh-so-cagey Mitch McConnell. Biden thought he was doing a good thing for both Garland and the country. Didn’t work out so well.
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Annie – this post keeps mentioning something that has been on my mind lately.
Biden has been in federal level politics for decades. In that time he’s developed a really deep Rolodex (remember those? remember that term? I guess it’s “long contact list” now) and has an understanding of who in that list is good at what. He has chosen for his administration people who will be good at the jobs he offers them.
He has also been scrupulous about allowing those in federal positions to do their jobs unmolested, in some cases making that hands-off policy a talking point (AG Merrick Garland).
It seems to me that there are some actions that ought to be taken (*cough* DeJoy! *cough*) to correct some really damaging assignments made by the former guy. But that would violate the rules and Biden is being scrupulous about abiding by the rules. Darn it.
But, speaking of the former guy, that person (*ahem*) chose to surround himself with people whose only job was to plump up his ego whenever it deflated. To that end, he assigned an anti-public schools person to the Dept. of Education, a person who couldn’t even get a security clearance to an international relations job, and his daughter to represent the U.S. at an international economic summit where she embarrassed the U.S by suggesting that women should be represented in economics to high-level people including a few women who literally scoffed and turned their backs in order to continue a conversation with the other grown ups. She appeared to be both too dense and to vaporous to comprehend that she had embarrassed herself – so I guess she didn’t.
Sorry, this went longer than I meant it to.
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The practice of putting opponents in charge isn’t new. James Watt was Reagan’s Secretary of the Interior. Watt was known for his hostility to environment protection.
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That’s true, William. It’s another way in which the Republicans have long demonstrated their contempt for government.
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An important point–and distinction–MDavis. Not enough has been said about the high quality of the people Biden has hired. And I’ve seen no comparisons between them and Trump’s ill-qualified anti-staffers. Betsy DeVos was just one of the foxes Trump placed in official hen-houses: people opposed to the tasks they were supposed to carry out for the American people.
I’ve read some suggestions that Garland may well offer his resignation after Biden’s reelection. That would be a good thing. It took me a while to appreciate how much harm a decent, honest, highly qualified professional could do. But his lengthy delay in investigating Trump, his hands-off approach to the Durham inquiry, and his appointment of the partisan Hur have not served US well.
I don’t know why Biden hasn’t fired DeJoy. And I’ve often felt that a good investigative journalist (there still are some) could do a terrific series on the extent to which the Biden administration had to rebuild the federal government after the Trump debacle, when Biden’s team came in with the Covid epidemic raging, anti-science people attacking them, and the economic catastrophe of Covid to contend with. I’ve also long had the sense that the flak Biden took for our initial messy withdrawal from Afghanistan, which was made worse by Trump’s negotiating with the Taliban and not including the Afghan officials, was also tied to the refusal of Trump’s team to engage in a proper handoff.
Stuart Stevens pointed out how remarkable it is that Biden has accomplished so much when he’s facing Republicans who don’t even accept his legitimacy. I don’t think any other politician could have done what he’s done in any environment–let alone this one–entering the White House following chaos. But I’m confident that historians will treat him very kindly.
No apologies needed; I welcome your comments and, as you can see, they’ve stimulated my thinking.
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“I don’t know why Biden hasn’t fired DeJoy. ”
My understanding is that DeJoy, once in place, can be removed only be a vote of a committee in charge of that office. The committee appointments are what Biden has some control of. It’s that scrupulous rule-following.
However, he should have found a way to rid himself of an officer whose actions have been, at best, dereliction of duty IMO. His big claim to fame is interference with mail-in voting which should be actionable somehow, even though the rules allegedly state that Biden can’t just fire the bastard.
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Right; I’d forgotten about the committee vote. Thx,
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Thank you, M. Bouffant!
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Anne, thank you for compiling these materials.
I have gone through the 383-page Hur report in full. Consider me a masochist, but please don’t test my memory.
The Weissman and Goodman summary is notably more accurate than what I view as Hur’s biased summary.
Regarding discussions on President Biden’s age and capabilities, I have a couple of points, not unlike those in the previous comments.:
1. Biden’s Historic Achievements. Labeling President Biden as an “elderly man with a poor memory” is incongruous in light of his first term achievements to date. Under his leadership, we have had a robust recovery from COVID-19, a revitalized economy, and meaningful legislative victories in areas including climate change, gun control, and drug pricing. He has navigated through the Republican-created potential debt limit crises, strengthened our Pacific alliances against China, and revitalized the NATO alliance.
The list goes on, …. all these successes are getting boring.
Imagine what Biden could have done if he had a better memory!!
2. Advice from Abe Lincoln. I recall the (apocryphal) anecdote about Abraham Lincoln’s support for General Grant, despite the latter’s (alleged) drinking habits, because “he fights.” Like Lincoln, I value Biden’s effectiveness regardless of the date on the calendar.
Facing criticisms of Biden’s age, my stance is clear: four more years of this effective leadership.
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Allan K: Thank you so much for this edifying comment! Being slightly less masochistic, I couldn’t imagine wading through all 383 (or 388) pages, but I do think Weissmann and Goodman gave a reliable rebuttal and expiration, despite the DOJ’s insistence the report hadn’t exceeded their guidelines.
Your mention of Abe Lincoln reminded me that I had missed Heather Cox Richardson’s coverage of the Hur report, which is another excellent source. Here ‘tis.
https://heathercoxrichardson.substack.com/p/february-9-2024
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About the NYT … I still subscribe. I’ve read the NYT since I was a teenager. But I read it mostly for the book reviews, the art, the reviews of Broadway shows, the GREAT recipes. & I really loved that their sports page (what remains of it) called the Buffalo Bills the “most exciting” team in the NFL. LOL
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