Live Updates: Special Counsel Who Faulted Biden’s Memory Testifies
"Republicans are peppering Robert K. Hur about his justifications for not charging the president in the classified documents investigation. Democrats are criticizing him for making broad assertions about Mr. Biden’s memory.
Pinned
Robert K. Hur, the special counsel whose investigation of President Biden’s handling of classified documents raised questions about the president’s mental acuity, defended his inclusion of the disparaging remarks on Tuesday during a hearing before the House Judiciary Committee.
In February, Mr. Hur concluded a yearlong investigation into Mr. Biden’s retention of sensitive government documents by finding that the president should face no criminal charges. But Mr. Hur, using language Mr. Biden’s team saw as gratuitous, politically damaging and outside his job description, described the octogenarian president as “a sympathetic, well-meaning, elderly man with a poor memory,” likely to be acquitted by any jury.
Representative Tom Tiffany, Republican of Wisconsin, accuses Hur of being part of a “praetorian guard” that protects “the swamp” and “elites.” Neither side is happy with Hur or his report.
Representative Jayapal went on to get Hur to address explanations for why there was insufficient evidence to prove Biden willfully retained classified documents apart from memory issues. He confirms that lines like “In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute” are in his report.
If there was one moment so far that will make Biden and his team cringe, it may be the one served up by Representative Pramila Jayapal, when she claimed Hur had exonerated Biden. His retort — "I did not exonerate him" — will be used repeatedly by Republicans and Trump. That’s not helpful to Biden.
The political dynamics of the hearing are basic, and binary. Democrats are defending their candidate by trying to debunk the memory issue, while Republicans are framing the Hur report as proof Trump didn’t do anything worthy of an indictment in his own classified documents case.
You can tell you are entering the third hour of a committee hearing when half the members’ seats are empty.
If there is one performance so far that the White House likely appreciates, it’s the one by Representative Adam Schiff. The deeply held belief inside the West Wing is that Hur was over the top — and purposeful — in using language that questions the president’s cognitive capacity. Schiff’s decision to press that case against Hur was most likely cheered on by the president’s allies.
Adam Schiff gets to the heart of the Democratic criticism of Hur: Why did he choose “a general pejorative” description of Biden’s mental state rather than “the specifics” of inconsistencies of Biden’s statements?
Hur fires back at Schiff: “You are suggesting I shape, sanitize” my report for political purposes.
As Republicans like Representative Jeff Van Drew of New Jersey use their questioning of Hur to portray Biden’s and Trump’s actions as equivalent in order to disparage the charges against Trump, Hur could respond by repeating what he wrote in his report, that there are clearly “several material distinctions” between the two cases, and the allegations against Trump, if proved, “present serious aggravating facts” unlike the evidence involving Biden. It is notable Hur is choosing not to speak up.
House Republicans for months have been trying to dig up dirt on President Biden, mostly by focusing on the international business dealings of his son Hunter.
But that investigation has not, to date, produced the kind of bombshell revelations Republicans had hoped could fuel his impeachment in the House and help swing the 2024 election to former President Donald J. Trump, who faces 91 felony counts in four separate criminal cases.
That is the first time Hur got angry. Hank Johnson suggests Hur “smeared” Biden — he shoots back to say he has no partisan motivations and no aspirations to serve in a future Republican administration.
Republicans are omitting two key facts when they suggest Biden’s retention of a few documents is comparable to Trump’s behavior. First, Trump retained many more files. Second, Trump is accused of obstructing the investigation — while Hur said Biden cooperated fully.
Ninety minutes into the hearing, Hur is calmly navigating the choppy waters between the two parties. But his responses appear to show an undercurrent of disapproval of Biden’s actions — and an unwillingness to offer the president much more than a fairly narrow legal exoneration.
One emerging pattern is that the hearing is not focusing on weaknesses in the evidence Hur gathered apart from Biden’s mental state. Republicans want to portray Biden as a criminal who is escaping charges only because he is, as Representative Matt Gaetz’s words, “senile.” Hur, who has been accused of violating Justice Department policies and standards for including gratuitous disparaging comments in his report about Biden’s memory, has his own incentive to focus on how Biden’s mental state might come across to a jury as relevant and proper to discuss. Democrats, meanwhile, are focusing on the ways Donald Trump’s hoarding of classified documents, for which he faces charges, was worse.
As a result, so far there is little discussion of why the facts Hur found fell short of proof that Biden knew he had any particular classified document – regardless of memory. Hur was unable to ascertain what Biden had been talking about in the tape about finding “classified stuff” in a Virginia house, and wrote that the only documents that were chargeable as unauthorized retention were a set of Afghanistan war files found in a box, with a jumble of unrelated stuff, in the garage of Biden’s Delaware house. But Hur was unable to figure out who packed those documents and how they ended up in the garage.
Key moment: Hur says Attorney General Garland did not pressure him to make changes to his report or request any changes.
“It makes, really, a perfect case. You did your job. Mr. Garland did his job. And unlike Mr. Barr, he didn’t interfere. Did Mr. Garland ask you to change your report at all?” “He did not, sir.” “Didn’t redact a thing?” “No, sir.” “Like Mr. Barr did, he redacted everything and made the Mueller report look like 180 degrees different than what it was. Mr. Garland did right and you did right. And I commend each of you.”
The exchange between Matt Gaetz and Hur underscores why Biden’s aides believe his post-report news conference was not helpful to him. The president was angry that night and made several statements in response to reporter questions. Gaetz called the answers “lies,” though Hur would say only that the president’s statements were “inconsistent” with the evidence his team discovered.
Representative Matt Gaetz, Republican of Florida, accuses Hur of letting Biden slide for his handling of classified documents under what he calls the “senile cooperator theory.” He says he agrees that Biden shouldn’t have been charged, but argues Trump too should not be charged for mishandling classified documents. Gaetz himself has been investigated by the Justice Department over whether he violated sex trafficking laws. Ultimately no charges were brought.
Matt Gaetz tries to get Hur to say that Biden has lied publicly about his handing of documents. The most Hur will say is Biden’s remarks are “inconsistent” with his findings.
Hur makes a significant factual mistake — saying Dana Remus was President Obama’s White House counsel. She was President Biden’s.
Representative Jamie Raskin of Maryland, the top Democrat on the Oversight Committee, accuses Republicans of appointing themselves “amateur memory detectives” as they try to use this hearing to attack President Biden for electorate gain
There’s a (knowing) irony in the grilling by Republicans of Hur. They accuse Biden of being prideful and egotistic in his decision to retain classified information — perhaps not wanting to highlight the ego and pride demonstrated by their own candidate for president.
That was a significant moment: Jim Jordan accuses Biden of holding onto secrets to make money off his book and burnish his political image — and Hur says he agrees with that “assessment.”
Jordan shouted a theory that Biden had a motive to keep classified documents because he wanted to write a book off of them and he made $8 million on his book. (The documents in the garage were from a 2009 Obama debate about the Afghanistan war; the book was about the death of Beau Biden and did not mention that issue.)
When a member of Congress begins to talk during the hearing, two clocks posted on the back wall in the hearing room begin to count down from 5 minutes, almost like a shot clock in basketball. Any time the member looks up, he or she can see the clocks and how much time there is left to question Hur. This can lead to some rushed lines of questioning as a member nears the end of the 5 minutes.
This hearing is a classic example of Washington at its best: Lawmakers from both sides seem barely interested in Mr. Hur’s responses, and are answering their own questions before Mr. Hur can respond. It’s evidence of the performative aspect of these kinds of politically-charged moments in the nation’s capital.
When a Republican committee member asks Hur if his exoneration of Biden now means it’s acceptable to take “secrets” home, he stumbles a bit, then answers: “I wouldn’t recommend it.”
Hur defends his inclusion of disparaging comments about Biden’s memory, saying part of explaining his decision to recommend no charges was to think about how Biden would come across in a courtroom if there were a trial He notes that Biden said he did not remember telling a ghostwriter in 2017 that he had just found “classified stuff” (as a tape shows he did) — or finding classified documents.
My task was to determine whether the president retained or disclosed national defense information, willfully. That means knowingly and with the intent to do something the law forbids. I could not make that determination without assessing the president’s state of mind. For that reason, I had to consider the president’s memory and overall mental state and how a jury likely would perceive his memory and mental state in a criminal trial. These are the types of issues that prosecutors analyze every day. And because these issues were important to my ultimate decision, I had to include a discussion of them in my report to the attorney general. The evidence and the president himself put his memory squarely at issue. We interviewed the president and asked him about his recorded statement. Quote, “I just found all the classified stuff downstairs,” end quote. He told us that he didn’t remember saying that to his ghostwriter. He also said he didn’t remember finding any classified material in his home after his vice presidency and he didn’t remember anything about how classified documents about Afghanistan made their way into his garage. My assessment in the report about the relevance of the president’s memory was necessary and accurate and fair. Most importantly, what I wrote is what I believe the evidence shows and what I expect jurors would perceive and believe. I did not sanitize my explanation, nor did I disparage the president unfairly. I explained to the attorney general my decision and the reasons for it. That’s what I was required to do.
The context of that recorded conversation was discussion of an unclassified memo that Biden wrote to President Obama in 2009 about the war in Afghanistan. Biden has said that he wanted his ghostwriter to keep that private message to Obama confidential. He argued that he just misspoke.
Much has been made of Hur’s decision to quit the Justice Department earlier this week before testifying. But he signals he will abide by the basic constraints that would have been imposed him had he stayed — saying he will limit his answers to the contents of his report.
President Biden has few friends on the G.O.P. side at this hearing. The two Republicans seated at the center of the dais — Jim Jordan and James Comer — are leading an impeachment investigation into the president. Even Ken Buck, the member of the committee who has expressed deep skepticism about the impeachment push, has called for Biden to be removed under the 25th Amendment because of the Hur report.
Hur is showing his years of experience as a career prosecutor comfortable making his case in public — this time to defend his own characterizations of Biden’s mental status that Democrats call misleading and gratuitous.
Hur, speaking confidently in a steady voice, begins with his origin story: He is the son of immigrants from Korea who came to the country to avoid violence and privation.
Comer, who is leading his party’s attempt to find a basis to impeach President Biden, asserts as fact that Biden was aware that he possessed classified documents. Hur's report says there was insufficient evidence to prove that Biden knew that classified files from a 2009 internal Obama administration debate about the Afghanistan war were in a box that had been shipped to his garage.
James Comer, chairman of the House oversight committee, just accused the White House of “obstructing” the documents investigation. He made a similar accusation against the F.B.I. for initially refusing to release an internal report — later proven to be fabricated — alleging that Biden accepted a $5 million bribe.
The remarkable thing about this hearing is how much it’s shaped by the rematch that voters are facing this November between Biden and Trump. On paper, Hur is supposed to talk about his report. In fact, the next several hours will be about both sides waging a proxy fight over their 2024 presidential candidates. It’s a preview of everything in Washington for the next eight months.
In his opening statement, the Democratic ranking member, Jerrold Nadler, plays a video of Trump saying he does not remember things, slurring his words, saying the wrong names for people and otherwise looking confused. Nadler argues that Biden had the “mental acuity” to navigate the discovery that classified documents had improperly accompanied him out of office without getting criminally charged, while Trump did not.
For President Biden, the hearing on Capitol Hill will be a mixed political blessing: an opportunity for his allies to remind voters of his exoneration, but a chance for his adversaries to call attention to his age and health.
The president would like to focus on the first. In their responses since Mr. Hur’s report was released to the public, White House advisers have stressed the contrast with former President Donald J. Trump’s own case involving classified documents.
Jim Jordan’s opening statement reflects the main goal of the Republicans at the hearing: To question the fairness of prosecuting Trump and not Biden — even though Hur has said Trump’s actions were incomparably worse.
The Republican Judiciary Committee chairman, Representative Jim Jordan, immediately misportrays Hur’s findings, asserting that the now-former special counsel, Robert Hur, determined that President Biden “unlawfully” retained classified information because on the first page of his report Hur wrote that he found evidence Biden had willfully retained such files. Jordan is eliding the difference between finding some evidence that X may be true and finding sufficient evidence to prove that X is true. In fact, Hur concluded that there was insufficient evidence to prove Biden willfully held onto the files.
As the hearing starts, President Biden has a full day focused on other things. He will participate in a campaign event early this afternoon at the Teamsters union headquarters in Washington, D.C. Later he will meet with the president and prime minister of Poland.
After brief disruptions, the hearing with Hur has started.
Hur interviewed Biden one day after the Oct. 7 attack by Hamas on Israel. “I just got off the phone with Bibi Netanyahu,” Biden said at the start of the interview, warning that he might be interrupted.
WASHINGTON — Robert K. Hur, appointed last year to oversee the investigation into President Biden’s handling of classified documents, has two attributes that suited the task — years of prosecutorial experience and a vivid understanding of the perils inherent in high-wire special counsel investigations.
Mr. Hur, 51, was President Donald J. Trump’s pick to run the U.S. attorney’s office in Maryland, where he earned bipartisan praise for his handling of violent crime and public corruption cases. But it was his 11-month stint as the top aide to the deputy attorney general, Rod Rosenstein — as Mr. Rosenstein oversaw the appointment of a special counsel, Robert S. Mueller III, to investigate Mr. Trump’s dealings with Russia — that might have been the most critical.
Last month, Attorney General Merrick B. Garland released the report by Robert K. Hur, the special counsel Mr. Garland had appointed about a year ago to investigate how classified documents ended up in an office formerly used by President Biden and in his home in Delaware.
Mr. Hur concluded that the president should not be charged for retaining classified information from his vice presidency, but it also raised questions about Mr. Biden’s memory. Here are some takeaways from the report."
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