The Report by Special Counsel Robert Hur investigating President Biden’s possession of government documents – including highly classified documents – has determined that there is no need to prosecute. That conclusion would be understandable if the report had exonerated Biden from illegal possession of those documents. But nooo! It read like an indictment.
The Report said that Biden “knowingly” and “willingly” possessed classified government documents — a violation of the law. That he “knew” many of the documents were classified at the highest level. That he knew at the time that he was not authorized to take them. And that he shared some of the documents with others who were not authorized to see them. The Report indicated that Biden had lied to investigators on three occasions.
- Biden falsely claimed that he did not have any classified documents even those he had quite a few.
- He claimed all documents were kept in locked files, when even highly classified documents were found in damaged cardboard boxes in his garage.
- Biden claimed he never showed the documents to others, but evidence established that he did, including classified documents.
- He claimed he did “not recall” receiving a briefing from the National Archives over handling of such documents – and that he did not know he was supposed to return them — even though he signed a document acknowledging the briefing.
In response to a question, Hur said the lies were not material to the investigation and did not influence the outcome. Really?
Hur also stirred the debate over Biden’s age and mental acuity. In the Report, Hur wrote that Biden’s memory was “significantly limited.” Hur said Biden had “diminished faculties in advancing age.” He described Biden “as struggling to remember events and straining at times to read and relay his own notebook entries.”
Why would Hur go into such detail regarding the mental acuity issue? Simple. In justifying his decision to not prosecutor further, Hur claimed that Biden’s memory would make it difficult to win a conviction. The Report stated that “We also have considered that, at trial, Mr. Biden would present himself to a jury, as he did in our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”
Ironically, the strongest arguments for not recommending an indictment to the Department of Justice were based on two things unrelated to the possible crime – Biden’s current mental condition and a comparative analysis with the Trump case.
Hur’s Report stressed the differences between Biden and Trump. The Report said that Biden returned the documents upon request. He fully cooperated with investigators – a claim that conflicts with the lies he told investigators.
Conversely, Trump is accused of resisting the return of documents, concealing evidence and other obstructionist activities. Fair enough. Those are legitimate distinctions in the two cases. BUT … is that a basis for such different decisions? The political class on the left will say “yes.” But that does not make it true.
Personally, I question the fact that Hur would put so much of his decision on the Trump case. In fact, is there a legal basis for deciding an outcome in one case based on such comparisons? No. Such comparisons are usually reserved for sentencing, but not when considering an indictment. In fact, courts often bar such comparisons as prejudicial in determining guilt.
Essentially, Hur appears to have made his decision to disregard Biden’s culpability based on Trump acting worse and Biden having obvious mental acuity issues.
CNN legal analyst Eric Honig did not see either of those as determinant considerations in terms of the commission of a crime. He said that at best the decision not to indict was a close call – right on the edge. He said he was surprised with the outcome in view of the incriminating evidence Hur cited in the Report.
Honig also shot down Hur’s contention that the state of Biden’s memory today is grounds for declining to prosecute. To question Biden’s understanding of his actions, Hur would have had to establish memory problems at the time the documents were taken.
To understand the torrent of criticism that resulted from the Report, think of it as bank robbery. One defendant admits guilt and returns the money. The other does not and goes to extremes to thwart the investigation. The second defendant may incur more charges or harsher punishment, but that does not mean the other bank robber deserves a get out of jail free card. It may also serve as an example of how the rule-of-law is superseded by the rule-of-man – called prosecutorial discretion.
In the crazy world of law and politics, the decision to not charge Biden may be a small gift to Trump. There is such a thing in law called “discriminatory prosecution.” It means that a person is unfairly prosecuted while others with similar charges are not. It is not an easy point to win in a court-of-law, but you can bet Trump’s lawyers will be using it in his documents case.
Regardless of the controversy, the legal threat to Biden is over. Or is it? If Trump returns to the White House, what is to prevent him from re-opening the investigation? And at a time when Biden no longer enjoys immunity from prosecution. There is no double jeopardy because Biden was never tried and found innocent. It was an administrative outcome to not prosecute, not a judicial determination of innocence or guilt. Apart from the legal arguments, the Democrats’ decision to mount criminal legal actions against former President Trump could set a precedent that bites Biden in the butt. If justice does not work, karma often does.
So, there ‘tis.