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| Robert Hur testifies before Congress |
For many Americans, the most memorable part of Special Counsel Robert Hur's report in the Joe Biden classified-documents case was the claim that the president could not remember the date of his son's death. But a transcript of the Hur-Biden interview, released yesterday, shows the president did know the date of his son's death and stated it correctly, along with other relevant details.
Here is a particularly thorny detail about Robert Hur. He resigned from his Department of Justice position on Monday and testified before Congress yesterday as a private citizen. Why did Hur make that decision, and did he make it on his ow or with the assistance of someone else.
It is common for sketchy figures in high government positions to be allowed to resign in lieu of being criminally prosecuted. This serves at least two purposes: (1) It keeps the sketchy figure from going through the discovery process of a criminal proceeding, which could reveal all kinds of embarrassing details that someone wants left under wraps; (2) More importantly, it keeps those who benefited from the sketchy figure's dubious conduct from being unmasked to the public.
We have written about this issue, particularly as it applied to former Alabama federal judge Abdul Kallon, who presided over the North Birmingham Bribery scandal before, seemingly out of the blue, resigning and fleeing to Seattle, where he now practices as a private attorney. What is going on with Robert Hur's abrupt resignation? We will address that in a moment, but for now, we know the transcript from the Biden-Hur interview shows Hur gave a false assessment of the president's words regarding Beau Biden's death. Could Hur face political or legal repercussions for getting this key information wrong? We will address that in a moment, but first, let's look at the relevant section of the transcript, from the reporting of The Washington Post's Matt Viser:
President Biden was in the early stages of his interview with special counsel Robert K. Hur when the topic of Beau Biden came up — initially with Biden raising it and later as Biden was attempting to get his chronological bearings and wondered aloud when, exactly, it was that his son died.
“What month did Beau die? Oh God, May 30,” he said, naming the correct day, according to a transcript of the exchange reviewed by The Washington Post.
Two others in the room chimed in with the year, and Biden questioned, “Was it 2015 when he died?”
Not long after the exchange, Hur suggested they consider taking a brief break.
“No,” Biden responded, before launching into a long explanation of Beau’s death and its impact on him deciding not to run for president in 2016. “Let me just keep going to get it done.”
The exchange between Biden and Hur has become one of the focal points of a lengthy interview over two days in October that led the special counsel to conclude that Biden would not be prosecuted for mishandling classified documents — in part because Biden’s “poor memory” would make it difficult to convince a jury.
The transcript provides a more full depiction of the Hur-Biden interview than the public has seen before, Viser writes:
A Post review of the complete 258-page Hur transcript, which was provided to Congress on Tuesday morning, paints a more nuanced portrait of the exchanges between Biden and the special counsel. Biden doesn’t come across as being as absent-minded as Hur has made him out to be — and Hur doesn’t appear as crass as Biden has made him out to be.
“Just allow me to say for a moment, I am so terribly, terribly sorry for your loss,” Hur said after Biden first raised the death of his son.
The full transcript provides a more complete window into the back and forth between the two men, in which Biden frequently joked with prosecutors in a setting that seemed more chummy than antagonistic. (“I just warn you all: Never make one great eulogy because you get asked to do everybody’s eulogy,” Biden said at one point.) But the president also frequently digressed, with stories about trips to Mongolia and about the time he helped represent a client who lost one testicle and part of his penis. He also later twice mimicked the sounds of a car.
Biden spoke of working “in my pajamas” while at the Naval Observatory, made light of his poor spelling (“If it’s spelled right, it’s probably not”), and laughed off a photo of him with a onetime ally. (“You can tell it’s old. I have my arm around Lindsey Graham.”) He joked about how much time the FBI spent inside his home during the documents probe — “The FBI know my house better than I do” — and about what agents may have discovered.
“I just hope you didn’t find any risqué pictures of my wife in a bathing suit,” the president told federal prosecutors. “Which you probably did. She’s beautiful.”
The transcript shows that Biden, throughout the interview, insisted he had little involvement in packing or moving boxes and had no idea what was in them. Viser writes:
During the interview, Biden repeatedly professed that he had almost no involvement in packing or moving documents.
“I wish I could say I was more organized,” he said.
“She wanted nothing to do with my filing system,” he said of his wife.
Jill Biden has often asked him to keep more writings and to keep them organized, he said. She has implored him to be more like Franklin D. Roosevelt or Ronald Reagan, who would keep daily diaries.
Instead, Biden’s practice was to take contemporaneous notes and often store them away. He would forget what was there, and if anything he had was classified, he didn’t know it. If he found anything with classified markings, he said, he would give it back.
Asked about what might have been stored in the haphazard boxes inside his garage, he responded, “I have no godd--- idea. I didn’t even bother to go through them.”
Pressed further, he said, “I don’t remember how a beat-up box got in the garage.”
“Somebody must’ve packed this up, just picked up all the stuff, and put it in a box, because I didn’t,” he added.
As for the question raised at the beginning of this post, it is hard to say if Hur could face repercussions for his actions in the Biden investigation. Prosecutorial immunity generally protects prosecutors from lawsuits related to acts taken on the job, in their official capacity. Immunity, however, does not shield shield prosecutors from being sued for actions that are not related to advocating for the prosecution, such as acting as an investigator or police detective. Hur's acts in the Biden case appear to have been taken as part of an investigation, so he might have potential liability on that point.
Documents filed in Anilao v. Spota, a 2023 U.S. Supreme Court case, state the following:
Federal prosecutors may, in their discretion, bring criminal charges against prosecutors who willfully deprive defendants of their rights. 18 U.S.C.§ 242. Section 242 requires “willful” conduct, which requires a high showing from the federal prosecutor. Such prosecutions happen so rarely that they fail to serve as an effective check to a prosecutor’s power.
In my view, probable cause is present to launch an investigation against Robert Hur. Numerous publications have quoted Hur as saying President Biden could not remember the date of his son's death. But evidence from the transcript cited at the top of this post shows that Biden did know the date, and upon being questioned, also knew the year it happened.
The central question likely is this: Did Hur intentionally disseminate a false assessment of the Biden interview and did he do it at the encouragement of a political figure in order to hurt Biden's chances of re-election? The last part of that question comes into play largely because Hur is a one-time appointee of Donald Trump, Biden's chief political rival.
The even bigger question is this: Did Robert Hur act on his own or was he part of a Trump-fueled conspiracy to feed into concerns about Biden's age, hurting the incumbent's chances in the 2024 presidential election.
Voters need to know the answers to those questions before casting ballots on Nov. 5. And under 18 U.S. Code 242, highlighted in blue above, Hur can, and should, be investigated. But here is an obstacle that must be overcome: Hur was acting as a federal prosecutor at the time of apparent wrongdoing, so that would require another federal prosecutor to scrutinize the work of a fellow "tribe" member. Would any member of the prosecutorial fraternity have the guts to take on such a task? That seems unlikely, but there is no question that the Hur matter is ripe for an investigation -- and it clearly involves a significant queestion: Did Hur, alone or in concert with others, intentionally try to harm the electoral chances or a sitting U.S. president?
As for Hur's abrupt resignation, we have this from a report at Salon:
Special counsel Robert Hur, who investigated and declined to charge former President Joe Biden over classified materials found in his home and office, resigned from the Justice Department and will appear as a private citizen in his testimony to the House Judiciary Committee, according to The Independent’s Andrew Feinberg.
Hur, a Trump-appointed U.S. attorney who was tapped to lead the Biden probe by Attorney General Merrick Garland, formally stepped down one day before his Tuesday appearance at the request of Republicans led by Chairman Jim Jordan, R-Ohio. He drew criticism from Biden and the Democrats for criticizing the president’s memory in the report even as he declined to charge him.
Former Mueller prosecutor Andrew Weissmann explained that the Justice Department “cannot give instructions” to a former employee about what he “can and cannot testify to.”
“That makes it even more problematic from our perspective ... if he was still a federal employee, DOJ would have to approve his testimony and they’d be involved in his appearance tomorrow,” a Democratic Judiciary Committee source told The Independent.
“It’s hard not to anticipate some real ugliness with Robert Hur’s testimony,” tweeted former U.S. Attorney Harry Litman. “He already showed his partisan colors in the inappropriate parts of his report. And he and the [Republicans] obviously contemplate he can vilify Biden now that he’s testifying as a ‘private citizen.’”
We will have more zbout Hur's curious resignation in an upcoming post.
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