Feb.09

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A Great Day for Donald Trump, Part II: What's On My Mind

Special Counsel Robert K. Hur, who was examining the classified documents that Joe Biden retained when he should not have done so, finished his work last week and submitted his 388-page report this week. Yesterday, the report was publicly released. The good news for Biden is that Hur recommended no charges be filed. The good news for Donald Trump is that Hur raked the President over the coals, portraying him as a feeble-minded old man, and declaring that Biden willfully kept the materials, but that he really can't be prosecuted because he barely understood what he was doing.

We'll start with the key passages from the report. First, the portion where Hur most aggressively slurs Biden's mental faculties:

Mr. Biden's recorded conversations with [autobiography ghost writer Mark] 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. Among other things, he mistakenly said he "had a real difference" of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.

And then the portion where Hur explains that he's recommending against charging Biden because the President is a doddering old fool:

We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him by then a former president well into his eighties of a serious felony that requires a mental state of willfulness.

You are to be forgiven if you think that sounds more like it was written by Sean Hannity or Laura Ingraham, as opposed to a Department of Justice lawyer who is ostensibly supposed to be neutral.

These passages, along with many others, are simply beyond the pale. We say that for three reasons:

1. Hur did not make available his recordings of the interviews he alludes to, which means that not only is the voting public unable to judge his assessments for themselves, but also that there is zero context. For example, were the misstatements Hur alludes to cherry-picked, or are they examples of something that happened dozens of times? Did they appear to be actual misstatements, or were they potentially a byproduct of Biden's lifelong stuttering issues? Was Biden well-rested, or was he fatigued?
   
   For what it's worth, the one thing that is known (no thanks to Hur) is that the two interviews Biden sat for lasted 5 hours, and at least one of them took place the day after Hamas attacked Israel. Do you think maybe it is possible that Biden was on short sleep, and that he had other things on his mind?
   
   
2. Hur does not have the expertise to be assessing a person's mental state. If the Special Counsel planned to incorporate such "findings" in his document, and in particular if such findings were going to play a role in the decision to charge Biden or not, then he should have consulted someone (or, ideally, multiple someones) with the necessary training to make such judgments. This did not happen.
   
   It's worth noting that specific years are among the hardest things for human beings to remember, because the human brain isn't really wired to keep track of long-term timeframes, and because a set of four digits doesn't usually contain within itself any meaningful mnemonic elements (unless it's the year 1666, or something like that). In other words, it will be rather easier in 5 years, say, to remember that Carl Weathers and Toby Keith died in the Year of the Rabbit, as opposed to remembering that they died in 2024. Heck, (Z) is a historian, a field in which years kinda matter, and he also has memory skills that are, at very least, above-average. And yet, he still makes errors of this sort, both on this site and in lectures. Just this week, he told a class that the income tax was adopted in 1921, despite knowing full well it was adopted in 1913. It happens, and he is pretty sure it's not a sign that he's on the cusp of dementia. Because years are hard to remember, incidentally, (Z) always tells students on the first day of class that he will never, ever ask them a quiz question that requires them to remember a date.
   
   
3. It runs contrary to both Department of Justice policy, and to the general ethics of the legal profession, to editorialize in this way when deciding not to file charges. If a person is not convicted of a crime, and is not going to be convicted, then that means that they do not have a penalty they have to pay. Back-dooring a de facto penalty in there by slurring their reputation is sleazy.

So, why did Hur do it? There are two explanations that occur to us, and we suspect they are both partly on the mark. First, Hur is a Republican. He clerked for a conservative judge, worked for the Trump-era FBI, and then was appointed United States Attorney for the District of Maryland by Trump. It seems very probable that Hur saw this as an opportunity to score some partisan points and to do his part to defeat Joe Biden. It is also well within the realm of possibility that he'd like to be considered for a plum appointment, should there be a second Trump administration—maybe a federal judgeship, or maybe the Attorney Generalship. If so, Hur's in good shape on that front, as of yesterday.

Second, when a person or a panel is appointed to examine a particular question, there is much reluctance to come back with the answer: "Sorry! Didn't find anything!" Hur was on the job for a little over a year, despite this being a fairly simple matter. Surely he did not want to make it seem like he spun his wheels the whole time, nor did he want it to seem like the government wasted its money. At the same time, filing charges was clearly not in the cards—presumably because Biden's actions did not rise to the standard necessary to be criminal. So, Hur wrote up an explanation that effectively gives the impression that he did find dirt, and he really thinks there was wrongdoing, but he just can't recommend charges because of those darn juries with their darn feelings. One can see how that frames Hur's work as much more noble and substantive, especially in right-wing circles, as compared to "Sorry! Didn't find anything!" or recommending charges and having them go nowhere.

In any case, Hur (like James Comey before him), has had a giant political impact as a result of a "fair" report that he wrote about a Democrat running against Donald Trump. As you can imagine, Trump and his supporters are taking two lines of attack here. The first involves grabbing the low-hanging fruit that Hur left there for right-wingers to pick, and harping on Biden's cognitive abilities. For example, four of the top five stories on Fox last night were on this theme:

As a sidebar, when navigating to capture that screenshot, (Z) accidentally mistyped the name of the site as Fox Mews (note "m" instead of "n"). Probably not a sign of cognitive impairment. But it probably is a more accurate name for that media operation.

The second line of attack, which is the former president's preferred angle, is that the decision not to charge is proof that the system is rigged. Here is what Trump said in a statement:

THIS HAS NOW PROVEN TO BE A TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION! The Biden Documents Case is 100 times different and more severe than mine. I did nothing wrong, and I cooperated far more. What Biden did is outrageously criminal.

Nikki Haley, who apparently still hasn't decided if she is, or is not, running against Trump, made the exact same argument yesterday. These folks do not seem to care that you can't have it both ways; if Hur's assessments of Biden's memory are to be deemed reliable, then Hur cannot also be an incompetent hack who is in the bag for the President. It's gotta be one or the other, right?

At this point, let us remind everyone, for the umpteenth time, that Trump's claims are nonsense. Regardless of what Biden did, or what he thought, before his set of classified documents came to light, the fact is that he is the one who revealed their existence, at which point he willingly turned the documents over to NARA. Meanwhile, regardless of what Trump did, or what he thought, before HIS set of classified documents came to light, the fact is that the revelation came from outside, Trump did not return the documents even after being told multiple times to do so, and then he actively interfered with attempts to retrieve them. It is also the case that, at least based on what is publicly known, the Biden documents were mundane, while some of the Trump documents were extremely sensitive. If anyone is potentially guilty of "outrageously criminal" behavior here, it is Trump.

Just as the Republicans knew they had just been handed political gold, the White House knew it had a big problem on its hands. And so, Biden held a hastily organized press conference (as you can see above, from the Fox website). The President came out with guns blazing, focusing in particular on the cheap shot about his son's death:

I don't need anyone, anyone, to remind me when he passed away. How the hell dare he raise that. Frankly, when I was asked the question, I thought to myself, was it any of their damn business? The simple truth is that I sat for five hours, two days, over events going back 40 years. At the same time I was managing a national crisis.

The press conference was chaotic, and Biden was emotional, so he probably did not convey the message of "a firm hand at the wheel" that he hoped to convey. It did not help that he had another gaffe, accidentally referring to Mexico when he meant Egypt. Although again in his defense, (Z) has literally made that exact same error in lectures. The reason is that people remember things associatively, and that those are the two nations famous for having ancient pyramids. In any event, Biden is going to have to rethink his strategy of avoiding sit-down interviews, because he needs to convey, many times, that he's not losing his marbles. In particular, he really ought to change course and sit for a Super Bowl Sunday interview.

And finally, there's one other person worthy of mention, and of criticism, before wrapping this up: AG Merrick Garland. Garland appointed a special counsel here—when one was probably not called for—to avoid looking "political." He picked a staunch Republican for the job—when he really should have been looking for someone whose politics are not known—to avoid looking "political." He released the report—even though its editorializing violates DoJ policy and thus is basis for withholding release—to avoid looking "political." And now, the whole mess has become enormously political. Biden cannot ask for Garland's resignation right now, as it would look like Saturday Night Massacre, redux, but he would be entirely justified in doing so given how badly the AG has mishandled this whole matter.

The New York Times columnist and Nobel Memorial Prize in Economic Sciences winner Paul Krugman personally spoke with Biden in August for an hour. Krugman says that Biden is "perfectly lucid, with a good grasp of events." He calls Hur's report a "hit job" containing "snide, unwarranted, obviously politically motivated slurs." Here is the link if you are a Times subscriber. (Z)