Biden’s Doddering Document Defense

This image, contained in the report from special counsel Robert Hur, and marked with the number 1, shows a damaged box where classified documents were found in the garage of President Joe Biden in Wilmington, Del., during a search by the FBI on Dec. 21, 2022. PHOTO: /ASSOCIATED PRESS
This image, contained in the report from special counsel Robert Hur, and marked with the number 1, shows a damaged box where classified documents were found in the garage of President Joe Biden in Wilmington, Del., during a search by the FBI on Dec. 21, 2022. PHOTO: /ASSOCIATED PRESS

Summary

The special counsel says a jury might not convict the elderly President.

In a famous case from the 1990s, the mobster Vincent Gigante offered what became known as “the bathrobe defense." He attended his arraignment in pajamas and a bathrobe and claimed to be mentally impaired. Regarding President Biden’s misuse of classified documents, the country is now asked to believe the forgetful elderly man defense.

That’s likely to be the main public takeaway from special counsel Robert Hur’s 345-page report of his investigation into the secret documents Mr. Biden kept in various places. Mr. Hur reports that he “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen." But he concludes that “no criminal charges are warranted," in large part because he doesn’t believe a jury would convict “a sympathetic, well-meaning, elderly man with a poor memory."

The report says Mr. Biden kept documents with classified markings about Afghanistan, an issue about which he had taken a particular interest during the Obama Presidency. He also kept notebooks “implicating sensitive intelligence sources and methods" in his garage, offices and basement den.

Mr. Biden used these documents and notes to assist in writing his 2007 and 2017 memoirs, and he shared those secrets with a ghostwriter. Mr. Hur also discovered a recorded 2017 conversation in which Mr. Biden said to his ghostwriter that he “just found all the classified stuff downstairs." Mr. Hur also makes clear that with his long experience in public life, Mr. Biden was well aware of the rules required to protect national secrets.

Yet while his report is scathing on the facts, it goes easy on the decision to prosecute. A sitting President can’t be prosecuted under longtime Justice Department rules, but Mr. Hur says he also wouldn’t have prosecuted without such a rule. The reason? He didn’t think a jury would convict beyond a reasonable doubt.

Mr. Hur says a jury might buy a potential Biden argument that a former vice president used to seeing sensitive material would find the random classified document in his house as “an unremarkable and forgettable event." Or he might argue to a jury—as he did in his interview with prosecutors—that he honestly believed the notebooks were “my property."

Mr. Hur also says Mr. Biden would likely present himself as a forgetful old man, the way he presented himself to Mr. Hur’s prosecutors.

And it’s on this point where the report becomes more politically than legally damaging. As Mr. Hur puts it: “Mr. Biden’s memory also appeared to have significant limitations—both at the time he spoke to [his ghost writer Mark] Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.

“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," Mr. Hur writes.

If Mr. Biden is that forgetful, how can he fulfill his presidential duties for another four years? Democrats have some hard thinking to do about his candidacy.

All of this also raises a question of double standards regarding Donald Trump’s prosecution for mishandling documents. Mr. Hur is at pains to say that the difference is that Mr. Trump is alleged to have lied about the documents and refused to cooperate, in contrast to Mr. Biden. That may be true, but Mr. Hur’s report will still be front and center as part of Mr. Trump’s defense at his trial. And you can bet it will now be a staple of Mr. Trump’s presidential campaign.

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