Quick Take: Biden "cleared" of Document Charges?
No - what the special counsel actually found is that Biden is unfit to be president.
The DOJ’s Special Counsel Robert Hur released his findings yesterday which clearly establish the fact that as a former senator and vice president, Joe Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” The classified records Biden unlawfully removed from office, stored improperly and shared with non-cleared persons are not covered under the Presidential Records Act because Biden was not a former president at the time.
So Biden broke the law. That’s not my opinion or my personal conclusion, it is Robert Hur’s conclusion. So why isn’t Biden facing prosecution?
Well, that’s the Big Story. Especially in light of the fact the same DOJ has charged and is prosecuting former President Donald Trump for essentially the same category of crime.
Reading Hur’s report, one sees the kind of careful and deliberate consideration one would expect in an investigation of this seriousness. One would expect that former senior government officials deserve some degree of latitude and deference in matters such as these, and Hur does not disappoint. The question Hur explores, repeatedly, seeks to establish the degree to which Biden acted “willfully” and whether he knew his actions violated the law. And even then, he establishes this very fact: that Biden, at some point, knew or would have known, he was breaking the law. We’re left wondering, then - why no charges? On a related note, 18 USC § 1924 does not establish a burden of “willfulness” - anyone possessing a clearance is subject to prosecution without regard to “intent”. When you “sign for” your security clearance, you explicitly acknowledge this fact. But I concede that prosecutors always have discretion.
Hur’s analysis is straightforward in these matters and relies on the Justice Manual, which gives him (as a prosecutor proxy) authority to not recommend criminal prosecution in matters where - in his opinion - “reasonable doubt” may exist and (some jurors) might be sympathetic to “attenuating or mitigating circumstances”. In the specific cases of Biden’s unlawful possession, retention and dissemination of classified government information, Hur believes President Biden’s faulty memory would present jurors with “reasonable doubt” regarding the intentionality or willfulness of Biden’s crimes:
“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.”
Hur’s investigation certainly establishes this fact repeatedly, citing Biden’s “limited precision and recall”, and that “[his] memory was significantly limited”. Biden had difficulty remembering when he was vice president, when he stopped being vice president, and even when his son Beau died:
“In his interview with our office, Mr. Biden's memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended ("if it was 2013 - when did I stop being Vice President?"), and forgetting on the second day of the interview when his term began ("in 2009, am I still Vice President?"). He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he "had a real difference" of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.”
So Biden gets a pass because his memory is trashed - and that’s now The Real Story.
Never mind that Trump’s documents case as a former president, hinges on the very real defense that his actions are covered under the Presidential Records Act, that NARA (the National Archives and Records Administration) lacks any authority to designate what is or is not a “presidential record” and any dispute between Trump and the National Archives would ordinarily be resolved administratively. And that at the time Biden ordered the raid on Mar-a-Lago, Trump’s attorneys had been negotiating over and systematically providing documents in dispute since January of the previous year. No, because Trump is sharp as a tack, he gets his home raided by the FBI.
But this is now all about Biden’s defective memory - which is just as well. Because if Biden’s mental faculties are so bad he gets a pass on violating the law, then how can he sit as president? That is, Special Counsel Hur established Biden’s non compos mentis, that he is incompetent to stand trial for his crimes, so how does this not trigger Section 4 of the 25th Amendment? Not that I want to see a President Kamala Harris, but this is a serious question for the man presiding over our nation’s nuclear weapons release codes.
And if Biden’s 8pm angry meeting with the press last night is any indication, that’s all anybody’s talking about now. What a disaster! It was a feeding frenzy. And given this report came out the same week Biden confused meeting with Francois Mitterrand (long deceased) and Helmut Kohl (also long deceased) and claimed the Egyptian president is the president of Mexico, even the disinformation-misinformation- propaganda media complex can’t carry that much water.
Expect in the coming days renewed focus on Biden’s fitness to continue serving as president, let alone running for another term.