Politico Playbook previews the testimony later this morning of Special Counsel Robert Hur before the House Judiciary Committee. Hur is to testify on the report of his investigation of Joe Biden’s mishandling of classified documents (i.e., the report submitted to Attorney General Merrick Garland). The Playbookers have obtained and posted Hur’s opening statement here. These are the operative paragraphs:
My report reflects my best effort to explain why I declined to recommend charging President Biden. I analyzed the evidence as prosecutors routinely do: by assessing its strengths and weaknesses, including by anticipating the ways in which the President’s defense lawyers might poke holes in the government’s case if there were a trial and seek to persuade jurors that the government could not prove his guilt beyond a reasonable doubt.
There has been a lot of attention paid to language in the report about the President’s memory, so let me say a few words about that. My task was to determine whether the President retained or disclosed national defense information “willfully”—meaning, 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 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, “I just found all the classified stuff downstairs.” 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.
This is confused and confusing. Did Hur base his non-prosecution decision on his putative inability to prove the mental element of the possible offenses? Hur implies it is “willfulness,” although “gross negligence” would have sufficed to prove the offense under 28 U.S.C § 793. Or did he base his non-prosecution decision on a jury’s anticipated pity for a senile dolt? I trust that some members of the committee will home in on this issue this morning.
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