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President Biden’s handling of classified documents was appallingly sloppy, but special counsel Robert K. Hur made the right choice in concluding that criminal charges are not warranted and in distinguishing Biden’s treatment of classified material from that of former president <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a>.

The same cannot be said of Hur’s depiction of what he presented as Biden’s <a href="https://www.washingtonpost.com/national-security/2024/02/08/biden-classified-documents-special-counsel-report/" target=_blank>enfeebled cognitive condition</a>, “a well-meaning, elderly man with a poor memory.” <a href="https://www.washingtonpost.com/politics/2024/02/08/biden-memory-special-counsel-report-robert-hur/" target=_blank>The report’s extensive discussions</a> of that issue were not merely gratuitous — they constituted an egregious transgression of prosecutorial boundaries.

​ The decision to <a href="https://www.washingtonpost.com/national-security/2024/02/08/biden-classified-documents-investigation-special-counsel/" target="_blank">decline prosecution</a> first: Of course, had Hur concluded otherwise, any prosecution would have had to wait until Biden leaves office; long-standing Justice Department policy prohibits charging a sitting president. The 345-page report provides additional insight into what we already knew: the cavalier treatment of highly classified material, including a box spilled open in Biden’s Delaware garage — shades of Trump’s Mar-a-Lago bathroom. The newest, and most damaging, information involved Biden’s loose lips discussion of classified information with his uncleared ghostwriter.

​Biden, Hur said, “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” He should have known better.

According <a href="https://www.documentcloud.org/documents/24414255-report-from-special-counsel-robert-k-hur-february-2024" target=_blank>to the report</a>, Biden told the ghostwriter in 2017, after leaving the vice presidency, that he had “just found all the classified stuff downstairs” — probably, the report says, the same “top secret/sensitive compartmented information” material about Afghanistan that was later found in the garage. In addition, “at least three times Mr. Biden read from classified entries aloud to his ghostwriter nearly verbatim.”

Not good. “Classified stuff” is not supposed to be “downstairs” — it’s supposed to be in a secure facility. Reading word-for-word from classified reports is even worse.

Still, Hur correctly assessed that “the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt.” As the report observed, “Historically, after leaving office, many former presidents and vice presidents have knowingly taken home sensitive materials related to national security from their administrations without being charged with crimes.”

Of particular note, <a href="https://www.reaganlibrary.gov/archives/reagans-daily-diary" target=_blank>Ronald Reagan</a> “left the White House in 1989 with eight years’ worth of handwritten diaries, which he appears to have kept at his California home even though they contained Top Secret information.”

Equally important, as Hur noted, Biden’s conduct was far less egregious than what Trump is charged with in the Mar-a-Lago documents case. As much as Trump and his allies will try to conflate the two situations and claim that Trump is being unfairly prosecuted, the evidence in the two cases is very different.

As alleged in the indictment, Trump “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,” the report notes. “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.”

The report underscores the wisdom of Attorney General Merrick Garland’s <a href="https://www.npr.org/2023/08/11/1193465237/hunter-biden-investigation-special-counsel" target=_blank>decision to name a special counsel</a> in the Biden matter, if not the choice of Hur himself, about which more in a moment. A decision not to prosecute Biden while Trump is facing trial is far more credible coming from a source outside the Biden administration hierarchy.

And without a special counsel, all the public would have known was that the prosecution was declined, because ordinary prosecutors don’t produce public reports. In a case this high-profile, the public benefits from a greater understanding of what Biden did and how it differs from Trump’s conduct.

And yet, that report provision also led Hur astray, with his extensive and unnecessary discussion about Biden’s mental capacity. The report notes that Biden’s memory of events was “significantly limited” and that he had “limited recollection and recall.” Fair enough; that’s arguably relevant to proving whether Biden intended to improperly retain classified information. If Hur had stopped there, fine.

But he kept going. “In his interview with our office, Mr. Biden’s memory was worse” than in his discussions with his ghostwriter in 2017, the report states. “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.”

Biden, Hur said at another point, had “diminished faculties in advancing age.” Excuse me — is Hur a lawyer or a geriatrician? What’s his expertise in making this damaging assessment?

This portrayal of Biden as a doddering old man is inconsistent with what I hear from those who have frequent interactions with him. But assuming its accuracy, the details go far beyond what is appropriate to explain the decision to decline prosecution, and far beyond Hur’s brief. If, as Hur concludes, “the evidence does not establish Mr. Biden’s guilt,” why does it matter how a jury would assess Biden’s state of mind at a hypothetical trial?

Hur has a stellar résumé and a fine reputation. It’s understandable that Garland, in seeking a special counsel, wanted someone who wouldn’t be perceived as a Biden partisan. But Hur isn’t just a run-of-the-mill Republican — he served as top deputy to Deputy Attorney General Rod J. Rosenstein before becoming U.S. attorney for Maryland. As the Biden special counsel, he chose for his own top deputy another former Trump U.S. attorney, Marc Krickbaum.

So, it is no surprise that Democrats are <a href="https://www.theguardian.com/us-news/2024/feb/09/biden-memory-democrats-respond" target=_blank>crying foul</a> that the report they produced offers such ammunition to Biden opponents. It arrives in the midst of the presidential campaign, a contest in which the question of Biden’s age and cognitive fitness is a central issue.

Prosecutors are supposed to remain above the partisan fray, not embroiled in it. Sometimes such spillover is inevitable. But a responsible prosecutor would have taken care to avoid what Hur has done, which is to let his report become a potent — perhaps even lethal — weapon in the coming campaign.

Finalist, Pulitzer Prize for commentary, 2007

Yale College

Harvard Law School

Ruth Marcus is an associate editor and columnist for The Post.

Ruth Marcus

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Special Counsel Hur’s report on Biden is an egregious abuse of powers

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