Per my post from a couple days ago, I’ve embarked on a new commitment (?) to post more regularly, some of which will involve commenting on current news stories. My 2/7 post focused on two stories: The conviction by a court of the mother of a school shooter, and the failure of the latest immigration bill in Congress. Today I will look at the story of the week, which is the final report of special counsel Robert Hur on the investigation into then ex-Vice President Joe Biden’s mishandling of classified material, and the subsequent reaction of the White House.
Here is a link to a PDF of the report itself; it is 388 pages, so I forgive you if you don’t feel like reading it. Here’s some background on the incidents that spawned the investigation (it is a Wikipedia article, so caution is warranted, but it seems to cover the basic facts reasonably well). Here’s some New York Times reporting / commentary on the investigation.
Short story: Joe Biden took classified information with him when he vacated the Vice Presidency. As emphasized by the media at the time, a key distinction between Biden’s activities and the charges related to Donald Trump’s issues with classified documents is that Biden cooperated with authorities, whereas Trump obstructed. This is a key distinction, but other distinctions are not as clear as the media attempted to portray at the time. The Justice Department turned Biden’s case over to a special counsel, Robert Hur, who released his final report this week. The report shows that Biden did mishandle classified documents, but concludes that prosecuting such a crime in this case would likely be pointless because (among other things, but most conspicuously) Biden’s age, compromised faculties and general demeanor would lead a likely sympathetic jury to an acquittal. President Biden took deep offense to these allegations and hastily arranged a press conference, which itself raised additional concerns about his memory and mental faculties.
Much Ado About… ???
The answer is not “nothing”. This story is more complicated than it was portrayed when the issue first surfaced in the news. At that time, there was an obvious effort in the media to draw a sharp contrast between this case and Donald Trump’s parallel activities. And, again, a sharp contrast is warranted to an extent, as it became very clear that Trump simply stole many boxes of documents that he incorrectly and arrogantly declared as belonging to him. He now faces criminal charges, in what most independent legal analysts consider the best case of the many he currently faces.
When the Biden documents became news, there was a clear attempt to portray it as a kind of standard carelessness that many high-level officials exhibit in similar situations. That is, such individuals need to review documents as part of their jobs, and, occasionally, they make a mistake in handling them. Stuff happens. And Hur’s report clearly states that other Presidents and Vice Presidents have taken classified information with them, without prosecution, and that criminal prosecution of this case is not required, in part based on that precedent (to be precise, the report discusses the prosecution-worthiness of different categories of documents using different arguments).
Of course, “what aboutism” is rarely a good argument. Classified information is a serious matter. Many lower-level officials have been prosecuted for similar sloppy behavior, however unintended. But for these purposes, we just need to accept that a certain double standard does exist, across party lines. It is incorrect to say that America lacks royal families. Fine (well, not fine, but it is what it is).
But the story was not that simple. Much was made of Trump’s eagerness to show off classified documents to journalists and others, almost like trophies, a kind of proof of Trump’s importance in world affairs (in reality, an indication of deep insecurities and personal issues, but that is a subject for another time). Conversely, we often see Joe Biden portrayed as a kind and experienced source of sober wisdom about the state of the world, almost an anti-Trump figure. As is often the case with politicians, it turns out that the situation is more complicated.
As the report states on Page 99, “Like many presidents, Mr. Biden has long viewed himself as a historic figure.“ And he is — let’s just stipulate that all U.S. Presidents are historic figures. But Biden seems to view his broader career as one of special significance, and he clearly wants history to put him in the category of other great American leaders whose national political careers spanned more than fifty years. Most notably, and as referenced throughout Hur’s report, Biden had hired a ghostwriter toward the end of his Vice Presidency to write what would become his second memoir. One of the aggravating factors of this case — one that does draw some fair parallel to the actions of Donald Trump — is that Biden shared volumes of information with the ghostwriter, including notes that contained classified material. That’s a serious no-no. And clear evidence exists that Biden knew what he was doing.
Now, to be fair, this is not precisely the same degree of reckless and pointlessly vain actions in which Trump was engaging. But in another sense, it occupies the same general universe. It is clear that Biden kept certain classified material because he planned to write a memoir — an exercise in legacy-building, part of his grander need to place himself in the historic company of World Leaders Who Mattered. Donald Trump’s ego may be coarser and less sophisticated, but in the end… ego is ego. And some of the Biden classified document case is also about ego.
A Bridge Too Far?
Hur’s report explains in detail the reasoning behind his recommendation to not pursue criminal charges against Joe Biden. Most boil down to either “others did similar things, and the aggravating differences in this case would not be worth the trouble” or “a jury would likely not return a conviction for some reason or another”.
The most notable example of the second argument is this quote from Page 219:
Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well-meaning, elderly man with a poor memory. While he is and must be accountable for his actions-he is, after all, the President of the United States-based on our direct observations of him, Mr. Biden is someone for whom many jurors will want to search for reasonable doubt. It would be difficult to convince a jury they should convict him by then a former president who will be at least well into his eighties-of a serious felony that requires a mental state of willfulness.
Biden sympathizers, and Biden himself, are criticizing Hur’s decision to include this argument, which they view as unfair, incorrect and unnecessary. One does get the impression from certain conservative media that this is Hur’s fundamental argument for declining to recommend prosecution. And that is simply incorrect; Hur offers many pages of additional reasons why criminal prosecution is not indicated. Was it necessary to include this one?
Hur is a Republican and a former Trump appointee. It is reasonable to ask if this paragraph was politically motivated. Joe Biden clearly thinks so. Seething with anger, he conducted an ill-advised press conference shortly after the report was released, during which, ironically, he provided additional evidence that Hur’s characterization is reasonable. He confused the President of Mexico with the President of Egypt, which was at least his third act of public confusion just in the last week (he had previously referenced recent conversations with long since deceased European leaders from the 1980’s). One can excuse the occasional slip of the tongue, but President Biden’s slips are quickly becoming the norm.
But, again, did Hur need to “go there”? My sense is no, he did not need to go there. The conclusions of his report would have been justified with other arguments. On the other hand, this specific argument, while probably not required to make the case, is legitimate. That is, it is almost certainly true that jury nullification would be a serious impediment to a conviction, on the basis of Biden’s general presentation as a “sympathetic, well-meaning, elderly man with a poor memory“. If Hur is obligated to provide all of the reasoning behind his recommendations, then omitting this argument would itself be a political act.
In the end, we must accept that most people who rise to the level of Senator or Vice President or President of the United States — let alone all of the above — tend to have enlarged egos, and tend to hold themselves above the law in certain ways. As my mother used to say, “It’s the nature of the beast.” Humble, self-deprecating people generally do not enter high-stakes politics. If we didn’t prosecute Ronald Reagan for doing something similar (which he did, minus the sharing with a ghostwriter part), we should not prosecute Joe Biden. That said, it is painfully clear that President Biden is declining, much as it was clear that Reagan was declining toward the end of his second term. The world is too complicated to have failing senior citizens running the greatest country on God’s green earth. This was true in 1988, and it is even more true in 2024. It is time for both Joe Biden and Donald Trump to step away from public service, time for both to focus on their legacies if they so desire (albeit without the classified information), and time to turn the reins of power over to a younger generation of leaders. It is time to move on.