Legal experts criticized arguments made by Democratic figures defending President Joe Biden following the release of a scathing report by special counsel Robert Hur detailing his inability to recall significant events and mishandling of classified information.

Hur, who was appointed by Attorney General Merrick Garland to investigate Biden’s unlawful possession of classified information after his term as vice president expired in 2017, released a report of his investigation on Thursday, where he declined to issue charges against Biden yet described him as an “elderly man with a poor memory,” among other revelations. Democrats have since sought to claim that discussions of Biden’s memory were unnecessary to the investigation and were tantamount to a violation of departmental rules, though legal experts dismissed those concerns in comments to the Daily Caller News Foundation.

“The inclusion of the passages about President Biden’s memory was entirely appropriate. [Hur] was required to evaluate how the evidence would be considered before the jury and to make a confidential report to [Attorney] General Garland,” wrote Mike Howell, director of The Oversight Project and a former senior counsel to the U.S. House of Representatives Committee on Oversight, in an email to the DCNF. Howell also noted that “it was Attorney General Merrick Garland’s ultimate decision to release the report in its current form. The White House knows this, but their press staff, particularly Ian Sams are congenital liars.”

Read Robert Hur’s report about Biden here:

Report on the Investigation… by Daily Caller News Foundation

Howell refers to an appearance by Sams, a spokesperson for the White House Counsel’s Office, during the White House press briefing on Friday, where he suggested that the special counsel’s inclusion of passages about Biden’s memory were unwarranted. “When the inevitable conclusion is that the facts and the evidence don’t support any charges, you’re left to wonder why this report spends time making gratuitous and inappropriate criticisms of the president,” he said.

Some defenders of the president, such as former Attorney General Eric Holder, claimed that the report’s remarks about Biden’s memory were “flatly inconsistent with long-standing DOJ traditions.” However, experts who spoke to the DCNF disagreed with this claim.

“[T]he disclosure of the report didn’t violate the regulations which expressly allow the attorney general to release it if he deems it to be in the public interest,” said Brandon Brouek, a former assistant U.S. attorney and vice president of litigation at the Southeastern Legal Foundation in an email to the DCNF. “Ordinarily, a faulty memory would be highly probative and, at a minimum, relevant to an investigation, and so it would not be improper to discuss it in the report.”

“I know of no regulation that Hur violated,” wrote Hans von Spakovsky, a former federal election commissioner and senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. “An explanation of Hur’s findings on the president’s mental condition was necessary to explain why he is not recommending prosecution.”

Other experts were more cautious in their assessments of the passages on mental capability. “I wouldn’t say either that they’re gratuitous or that they are essential…They are clearly relevant,” Dr. Robert Leider, an assistant professor of law at George Mason University’s Antonin Scalia Law School, an expert on criminal law and criminal procedure told the DCNF.

Watch Biden’s remarks on the report here:

“The law that he was being investigated for violating has a very high mens rea standard of willfulness, where he has to act in violation of a known legal duty, and so his ability to appreciate and understand the legal duty is clearly relevant to whether the charges apply, to whether he’s guilty of the charges in the first place,” Leider said.

Biden’s defenders have also sought to compare Hur to former FBI Director James Comey, who in 2016 held a press conference announcing the results of his investigation into then-Democratic presidential nominee Hillary Clinton. Comey’s remarks that Clinton was “extremely careless” in her handling of classified information while declining to recommend charges was widely criticized at the time.

“The proper comparison is with AG Garland. The disclosure of the report was a discretionary call by the AG,” wrote Boucek. “Of course, there is a strong precedent for the AG disclosing these reports as [Attorney] General [William] Barr did with the Mueller report, even though it too contained descriptions of then-President Trump that he may not have appreciated.”

Others were more visceral in their responses to the comparison.

“It’s wrong,” wrote Howell of the comparison. “Comey clearly violated Department regulations in making his statements. special counsel Hur carefully considered how the case would proceed before a jury, as the Principles of Federal Prosecution require him to do in reaching a charging decision…[he is] required by regulation to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the special counsel. 28 CFR 600.8(c).”

“I don’t think that you can compare Hur’s report to  James Comey’s press conference. The FBI’s report produced evidence that Clinton had broken the law and yet Comey said she shouldn’t be prosecuted without given any proper justification for that claim,” wrote Spakovsky. “Here, Hur is not the FBI.  He is a DOJ lawyer providing a report to the attorney general, which is supposed to contain his recommendation on whether the evidence uncovered warrants prosecution.”

“Comey went out on his own and did the press conference. That was not his role as the investigator. That press conference should have been done by the lawyers at the Department of Justice [DOJ]. Here, the special counsel did not release the report on his own authority. That report was released by the Attorney General. That’s significant. That’s a big difference,” said Leider. “I think there is more consistency between how Robert Mueller handled [his investigation] and how Hur handled it, versus how Hur handled it and [how] Comey did.”

Trump, meanwhile, remains under an indictment brought by special counsel Jack Smith regarding allegedly unlawful possession of classified information at Mar-a-Lago in Florida after his term expired in 2021.

“A lot of these cases, especially involving former high-level employees, [the DOJ] tend[s] not to bring charges unless the action was either malicious or the person refused to return the documents once contacted,” Leider noted.

The DOJ did not immediately respond to a request for comment.

Arjun Singh on February 9, 2024

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