Although Attorney General Merrick Garland is the one who technically released the report, he had i
ndicated he would do so in advance, so Hur should have been fully aware that the findings of his report would be revealed — and could have predicted the impact his words would have.
The portion of the document garnering the most attention in the media — referencing Biden’s age and mental powers — is particularly egregious. Hur’s free-floating characterization of Biden as an “
elderly man with a poor memory” sheds little light on his charging decision.
It is certainly relevant for the special counsel to note the caliber of Biden’s memory about the documents in evaluating the strength of a criminal case. But many of the special counsel’s other comments about the president’s recollections during five hours of interviews were not relevant to the inquiry.
Perhaps most offensive was Hur’s observation that Biden did not remember when his son Beau died. That subject was well beyond the scope of the inquiry. And given the well-known impact Beau’s death had on Biden, its inclusion was needlessly personal and painful — as Biden’s heated reaction Thursday night demonstrated.
Hur’s justification for including this commentary on Biden — that these observations were a factor in considering Biden’s legal defenses — is also arguably misplaced. Speculating publicly about any possible legal defenses an individual might raise if they were charged with a crime and how they might be perceived based on age and memory is unnecessary in our view. These defenses had nothing to do with evaluating whether Biden committed a crime. They were musings unrelated to the evidence in the case.
Moreover, the language Hur used crosses the boundary from descriptive to inappropriate editorializing. Instead of neutrally describing what Biden recalled, he used evocative language as he surmised whether a hypothetical jury would view him the same way. But as practicing attorneys, we know that it would be extremely unlikely for any criminal defense lawyer to put Biden on the stand. The chances of a jury being confronted with how he might appear to them under examination would be slim to none, so it is ludicrous to mention as a public-facing explanation for not prosecuting Biden.
We cannot know Hur’s intentions, but his comments can certainly be seen as an unnecessary shot at Biden, one that reinforces a prominent line of partisan political attack against the president. It is a bad look for both Hur and the Department of Justice.