Blame Garland For The Hur Report

The characterization of Joe Biden “as a sympathetic, well-meaning elderly man with a poor memory” in Special Counsel Robert Hur’s report was intentionally damning. There were a great many other ways to express his point, that Biden would have made a sympathetic witness had he testified in a prosecution, without calling him a doddering and demented old man. While it wasn’t Hur’s job or inclination to be kind to Biden, it also wasn’t his job to do as much political damage as possible while declining to prosecute, which was never seriously on the table given Biden’s cooperation with the FBI and his immediate return of all classified documents.

But what isn’t well understood is that Hur, as special counsel, had a duty to explain his decision not to prosecute to the attorney general in a report.

The current special [counsel] regulations provided that the  special counsel, at the “conclusion” of his work, “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” 28 CFR § 600.8(c). This requirement is salutary. The Attorney General should know why the special counsel is, or is not seeking an indictment.

In the normal course of affairs, a decision to decline prosecution is never known. People who were targets are left to dangle in perpetuity when the government decides not to proceed, which has long been considered an exercise in impropriety as it leaves the innocent tainted and under threat even when the government has determined that they will be left alone. But special counsel has a duty to report back to the AG and explain his decision.

The regulation doesn’t provide how lengthy or in depth the report has to be, but just that it has to be. Hur could have provided a report that said little more than that his decision was based on the found facts and that the target was sympathetic. But the regs go further.

The regulations, however, do more than require the special counsel to give a confidential report to the Attorney General. The regulations create an expectation that the Attorney General will publicize the report:

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. 28 CFR § 600.9(c).

Whether that creates an expectation, as Josh Blackman asserts, isn’t all that clear. It provides authority to do so, but it’s permissive and qualified. The concern is that if the attorney general does’t release the report, it suggests a lack of transparency, that there’s something to hide. And indeed, there is. An investigation into a person who will not be prosecuted is something that ought to be hidden. But what if that person is a president or presidential candidate?

Josh argues that the reg is a mistake and should be rescinded, so as to eliminate the expectation and provide cover to the AG for not releasing a report about an innocent person.*

This provision is a mistake. If the special counsel recommends an indictment, and the official is indicted, let the indictment speak for itself. If the special counsel declines to recommend an indictment, simply decline to indict, and let everyone move on with their lives. Again, there is no actual mandate to release the report. But this provision creates an expectation that it will be released.

If the regs precluded release of the report, and the indictment spoke for itself in the case of a person whom special counsel determined deserving of prosecution, it would take the burden off of the shoulders of the attorney general. That would certainly make the AG’s duty simpler, even if it may not be quite so easy to “let everyone move on with their lives.”

But the fact that the regs required a report from Hur does not quite explain why the attorney general and almost Supreme Court justice, Merrick Garland, decided to release the report in full. Sure, it almost certainly would have brought a storm of criticism on Garland’s head had he not released the report, at least from some quarters, but being attorney general isn’t supposed to be a job for people easily wounded by harsh words.

Second, the Attorney General will no longer be forced to consider whether to invoke executive privilege and redact portions of the report. Indeed, since nothing would be redacted, the special counsel could be even more forthright in his recommendations.  Remember, there was lengthy litigation over redactions made by Attorney General Barr. And perhaps Attorney General Garland should have whipped out his redaction marker for the Hur report. Third, if the report is never released, the Attorney General would not be put in the tough spot of trying to summarize a report he disagrees with.

Josh is being far too kind to Garland. The “elderly man with a poor memory” language provided a secondary explanation for Hur’s declination. It was politically explosive, a point that Hur could not have missed in his decision to choose those words, and it is of dubious merit. Names and dates are often confused by people far younger than Biden. It does not mean they’re demented and incompetent, and has no bearing on the wisdom born of experience. Garland could have put on his big boy attorney general pants and either provided a summary of Hur’s report or, more appropriately, merely announced that Special Counsel Robert Hur, after completing his investigation of Joe Biden, had decided that it was not appropriate to prosecute.

But Garland simply released the report, as if it was out of his hands. This was Garland’s choice.

As for Biden’s mental acuity, we can watch him, hear him and reach our own conclusions. We don’t need Hur’s report to tell us what we think about Biden’s age.

*Remember, in our system, every person is innocent unless and until he pleads or is found guilty of a crime.

16 thoughts on “Blame Garland For The Hur Report

  1. Henry Berry

    This whole business about the degree of Biden’s senility has become the antithesis of Trump derangement syndrome.

  2. Mike P.

    Bill Barr certainly took liberties with the Mueller report before he released it so as to soften the blow for Trump which leads me to believe that there was an effort underway by some in the democrat party to use this as an impetus to get Biden to step aside and Garland went along.

  3. Hal

    How could Hur not have included something about his not charging Biden for mishandling classified documents? As a headline from The Federalist put it, “Either Biden Is An ‘Elderly Man With A Poor Memory,’ Or He Needs To Be Charged. Pick One.”

    1. Miles

      Scott gave you the answer in the post, that Biden’s age was secondary to the clear factual distinctions between Biden and Trump. Find a better place to get your analysis than the Federalist.

  4. Ray

    The post release press conference was even worse. It’s not his age, it’s his mental acuity, and what appears to be the onset of dementia. It’s terribly sad. Don’t blame Garland, maybe blame Dr. Jill Biden who is allowing this spectacle to continue. JoeBiden shouldn’t be President. I don’t think he really is the President. Neither should Donald Trump., but that’s for a different post.

    1. AnonJr

      The report, and the resulting press conference, inspire me. They inspire me to buy some “None of the Above 2024” pins and posters. We are not getting the best of either party.

      1. Carlyle Moulton

        Every ballot paper in every election in every nation should have a “none Of The Above” option and if it wins the position should be left vacant.

  5. RJT

    Hur had two challenging things to do: provide cover for Biden’s serial carelessness with classified documents (so that the prosecution of Trump for arguably similar crimes could proceed without having to charge Biden), and do so in a way where it wasn’t immediately obvious that the fix was in. Hur was brilliant – by essentially validating every charge but throwing chum in the water about Biden’s evident senility, his report managed to get everyone talking about everything other than the actual crime being investigated. Yes, it makes Biden look bad, but few who vote for Biden believe he’s not diminished; they just believe he’s not Trump. Yes, it destabilizes Biden politically, but the only thing that seems likely to kick him off the ballot at this point is if he actually ceased living. We are in politically Byzantine times.

    1. Miles

      Hur was a Trump-appointed United States Attorney for the District of Maryland. He was no friend of Biden’s and there was absolutely no reason why he would do anything to cover Biden.

      1. abwman

        You may be correct that Hur was no fan of Biden’s, but your reasoning for saying that is flawed. As you probably know, under Senate practices Hur’s appointment as US Attorney for the District of Maryland required the agreement of Maryland’s two Democratic Senators, Ben Cardin and Chris Van Hollen. In fact, when he was appointed, although noting that they did not propose his appointment, they praised him as a good choice. The mere fact that he was appointed by Trump says nothing about whether or not “he was no friend of Biden’s.”

  6. Pedantic Grammar Police

    I’m enjoying watching the Democrat Party’s attempts to extricate themselves from the impossible situation that they created by putting a senile man in the presidency with a VP who is utterly incompetent and unelectable, but who cannot be cast aside because of her intersectional credentials. They are stuck with Biden because the alternative is someone who is even dumber than Biden, who does not have the excuse of being senile, and who nobody will vote for. I am on the edge of my seat waiting to see what they do to resolve this conundrum.

  7. Serge Storms

    Josh argues that the reg is a mistake and should be rescinded, so as to eliminate the expectation and provide cover to the AG for not releasing a report about an innocent person.*

    Biden was far from an innocent person, simply having one document illegally is guilt, a violation other began when he removed the first classified document from a secured site. This wasn’t done when he had the authority to determine classification and change the classification status of a document. The documents did not walk out of his office and into his office or home by themselves. He had possession of some of the documents for over a decade and shared those documents with another party.

    That said, there is no way they were going to charge Biden in this case, they had to find a way to justify why they would not and try to sell it to the world.

  8. Mark Dwyer

    1. Biden is not senile. Even this political jab (or job, if you prefer) did not pretend to be based on whatever evidence a medical condition of that sort might be.

    2. Like Biden, at some point Trump was authorized to possess classified documents. After that, Trump wilfully evaded the recovery of classified documents that he was no longer authorized to possess. Repeatedly, and knowing he was at fault as to serious matters. As to a decision to prosecute or not to prosecute Biden: that is the only thing any non-political prosecutor would find necessary to distinguish Trump’s case from Biden’s. Not to suggest that there was anything else needed to require a different result would have been as easy as pie. And correct.

  9. Jardinero1

    “given Biden’s cooperation with the FBI and his immediate return of all classified documents.” That is some kind of joke right… right? The statement is true, literally, but not factually. Biden had some of these documents since 1977. Many of them were viewable only in a SCIF, and absconded thereof. They were shared with his ghost writer. He only remembered them, and rushed to return them, and “cooperated with the FBI”, only after the prosecution of his political opponent began.

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