Neal Katyal, a former acting solicitor general under President Barack Obama, helped craft the special counsel regulations in the 1990s, as a young Justice Department lawyer. Katyal said officials
at the time expected that most special counsel reports would not be made public, given long-standing Justice Department guidelines to not comment when prosecutors decline to indict someone.
But that’s changed in recent years. In 2019, special counsel Robert S. Mueller III’s investigation into possible Russian interference in the 2016 presidential election helped establish a new norm:
Reports would be made public, in an effort to demonstrate transparency and that an investigation was thorough and fair.
Katyal, citing his own role in creating the special counsel rules,
wrote an op-ed in The Washington Post that year saying Mueller’s report should be released so that the public would “have confidence that justice was done.”
On Friday, Katyal questioned Hur’s decision to include Biden’s alleged mental lapses during hours of interviews, including that he could not remember the year his son Beau died of cancer and struggled to recall the years of his vice presidency (Biden
angrily denied those characterizations after the report was released).
“Perhaps there was some justification for special counsel Hur to comment on the president’s age and mental fitness
, but I severely doubt it, and the report is not reassuring in this regard,” Katyal said in an email. “It seems gratuitous and wrong.”
Justice Department declination memos — which prosecutors write when they decide not to pursue charges, essentially ending an investigation — are virtually never made public. That’s in part because Justice Department guidance says that prosecutors should be sensitive to the privacy and reputation of people they are not charging. When charged, criminal defendants have the chance to defend themselves in a court of law.
But when a person is publicly accused of problematic behavior but not charged, they have no opportunity to present evidence and mount a defense.
Legal experts said that what’s so striking about the Hur report.
“It would have been sufficient to say that we did not have sufficient evidence that he was acting willfully,” Barbara McQuade, a law professor at the University of Michigan Law School and former federal prosecutor, said at a public roundtable on Friday.
“To instead besmirch his reputation struck me as going a bit above and beyond what you would expect from an ordinary prosecutor.”
As a special counsel, Hur’s “legal outcome is indeed fair and appropriate,” said Anthony Coley, a former Justice Department employee who was the agency’s top spokesman when Garland appointed Hur last January.
“But the editorializing — the excessive, unnecessary commentary about an uncharged individual — does not reflect DOJ’s best traditions.”