Joe Biden: Too Dumb to Prosecute?

Scott has already noted the release of Special Counsel Robert Hur’s report, in which he explains why he is not bringing criminal charges against Joe Biden for mishandling classified information. Of course, no one expected him to do any such thing.

I want to amplify the point Scott made about Hur’s repeated references to Biden’s mental capacity, and add a few more observations. Hur’s report is long, 388 pages, because Biden mishandled vast quantities of classified materials in a variety of places and over a long period of time. Within those 388 pages, these are the references I found to Biden’s mental capacity:

* 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.

* Mr. Biden’s memory also appeared to have significant limitations-both at the time he spoke to Zwonitzer in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with 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.

* Third, as discussed to some extent above, 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.

* We also believe some of the same evidence that supports reasonable doubt for the classified Afghanistan documents also supports reasonable doubt for the notebooks, including Mr. Biden’s cooperation with the investigation, his diminished faculties in advancing age, and his sympathetic demeanor. These factors likely make it difficult for jurors to conclude he had criminal intent.

“Diminished faculties in advancing age” is a shocking description of the President of the United States–or it would be, if we hadn’t all seen him struggling to read a teleprompter. One wonders why Hur included these multiple, rather brutal descriptions of Biden’s current mental state. He easily could have written almost the same report, coming to the same conclusions, without them. One wonders whether Hur and his staff were so horrified by Biden’s lack of mental competence that they felt obliged to include these passages as a warning to the rest of us.

Hur’s report is interesting in other ways, too. He confirms that it has been common for many years for presidents and vice presidents to take papers with them when they leave office, including classified materials. The example of Ronald Reagan, who took his personal notebooks with him when he left Washington, is invoked. It was widely known that he had them, but no one apparently thought anything of it. So why be hard on poor old Joe Biden?

The elephant in Hur’s room, of course, is the fact that Biden’s mishandling of documents came to light for only one reason–the federal raid on Donald Trump’s house and the ensuing criminal charges against him. Those events represented a sharp break from the benign view of ex-presidents’ use of classified documents for memoirs, etc., that previously had always been taken. Hur addresses the Trump precedent:

With one exception, there is no record of the Department ofJustice prosecuting a former president or vice president for mishandling classified documents from his own administration. The exception is former President Trump. It is not our role to assess the criminal charges pending against Mr. Trump, but several material distinctions between Mr. Trump’s case and Mr. Biden’s are clear. Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, proven, would clearly establish not only Mr. Trump’s willfulness but also serious aggravating facts. Most notably, after being given multiple chances to return classified documents avoid prosecution, Mr. Trump allegedly did the opposite According to the indictment, he not only not refused to return documents for months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden alerted authorities, turned in classified documents to the National Archives and the Department of Justice in 2022 and 2023, consented to the search of multiple locations including his homes, permitted the seizure and review of handwritten notebooks he believed to be his personal property, and in numerous other ways cooperated with the investigation.

Biden may be senile, but he is smart enough to say to the FBI and the National Archives: “Gosh! I might have some classified documents, too. Why don’t you come get them.” As I have said before, Trump’s handling of this matter, which otherwise would have been trivial, was either incomprehensibly stupid, or a deliberate attempt to get criminal charges brought against himself.

One last point. Consider this narrative from the Hur report:

In Mr. Biden’s interview with our office, he explained that he took his notebooks with him after his vice presidency because “[t]hey are mine,” and explained that “every President before me has done the same exact thing.” He also specifically referenced President Reagan, who, after leaving office, kept handwritten diaries containing classified information at his private home, as discussed in Chapter Ten. In his written answers, Mr. Biden wrote that, “[l]ike presidents and vice presidents before me, I understand these notes to be my personal property.” He declined to answer several questions about whether he believed his notes contained classified information; whether he believed he was authorized to possess classified information after his vice presidency, and whether he took steps to avoid writing classified information in his notebooks.

Biden “declined to answer”? What does that mean? Did he plead the Fifth? Is there some other basis on which he could “decline to answer,” based on the Special Counsel’s softball rules? (I.e., “We are sending you some questions. Please answer the ones you feel like responding to.”) I would like to know more about Biden’s declining to answer. Should news stories about Hur’s report headline, “Joe Biden takes the Fifth”?