The more I hear discussed the Special Counsel Report by Robert Hur, the more pleased I am that it exonerates President Biden for any crime related to having classified government documents, which was its entire reasons for its existence, and explains the significant differences with his situation and Trump’s who was indicted. And the more I think about the Special Counsel report, the angrier I get about almost everything else in it, including that the material exonerating President Biden was largely buried at the expense of the smears. For very demonstrable reasons, it seems just on the edge of a hit job.
The challenge I have in writing about the report is that there are so many points to bring up that I would begin by saying, “First and most important...” And so, I have no idea which of the “Firsts” should be first. They each leap out as profoundly important. The best I can do is start with some small background and then…well, make them all “First.” So, first and most important is the background. Because, yes, Joe Biden is 80-years old and not as sharp as he was 30 years ago, but "not as sharp as" doesn’t mean he isn’t still sharp (because he is, witness a couple of TV interviews he gave within days of his interview with the Special Counsel -- and his handling of the economy and juggling dicey world affairs). What it all also overlooks, importantly, is that Joe Biden making verbal and mental gaffes is something he’s done for decades. He talks a lot, he screws up what he’s saying a lot, stumbles on thoughts because he still deals with a stutter, garbles thoughts together, and that’s who he is and has long been. Certainly, some are related to age, but Joe Biden has been the subject of jokes about his gaffes for a very long time. But first and foremost, the day that President Biden sat down to do his interview with Special Counsel Hur, was October 7, 2023 – the very same day of the Hamas terrorist attack on Israel that killed 1,400 people and 300 more taken hostage, some of them American citizens, with many tortured, raped and mutilated. And all the while, he was contacting world leaders, dealing with Israel, calling members of Congress and having ongoing meetings all day with his National Security team. An attack, lest it be overlooked, as well, which occurred when President Biden had been in the midst of negotiating with Saudi Arabia about recognizing Israel. And amid all of that, he still agreed to sit down for his interview with the Special Counsel. It seems beyond reasonable that during his interview, Joe Biden would be at least a wee bit distracted. As would pretty much everyone in the White House be that day, and most people around the country, if not the world. Including Special Counsel Robert Hur himself – who knew perfectly well what the President was dealing with at that moment, and chose to ignore it in referencing Biden’s state of mind in his report. In fact, President Biden doing the interview on the day of the Hamas terrorist attack – when in the midst of negotiating with Saudi Arabia – should be the lead paragraph in any discussion about the interview. (I will add that, given what he was dealing with that day, along with the Saudi talks in the days leading up to it, why he didn’t ask for a delay is honestly beyond me. Or why his staff insisted it not be delayed. Perhaps he just wanted to get it behind him and move on, but still – all of that world conflagration was going on at the time.) And first and foremost, pretty much all lawyers tell every one of their clients, all the time, that if you don’t recall exactly the answer to something (most especially if it happened years ago), just say “I don’t remember.” That’s standard legal advice – not something that's ever seen as supposed evidence of mental fragility. In fact, when Trump sent written replies to Robert Mueller in the Russian election interference investigation, he wrote "I don’t remember” 36 times! And that was in the comfort of his own setting, with no prosecutor questioning him to his face, where he could take all the time he wanted to track down the answers. And he could further take the time to carefully craft and write out his answers – and there was no terrorist attack that killed 1,400 people he was dealing with. Yet, again, he wrote that he didn't remember 46 times. Furthermore, when questioned in his New York fraud deposition, Trump responded by pleading the Fifth over 400 times. For the record, President Biden took the Fifth zero times. First and foremost, it’s generally known that Special Counsel Robert Hur is not only a Republican, but one who had been appointed a U.S. Attorney by Trump – and despite all that he was specifically appointed by Biden's Attorney General Merrick Garland to head the investigation, rather than selecting a Democrat and risk appearing biased. But what’s almost unknown by the public (speaking of appearing biased) is that Robert Hur was on the team that recommended to Trump that FBI Deputy Director Andrew McCabe be fired two days before being set to retire and eligible for full pension benefits. It was a firing done purely out of spiteful retribution against McCabe for having opened two investigations of Trump -- which the Justice Department later ruled was an illegal violation of McCabe's rights and done as political retaliation. And so, in order to avoid facing his lawsuit, restored all of McCabe’s full benefits. That’s who Robert Hur is. (And why he was selected to be Special Counsel is beyond me, as well. Bending over backwards to be seen fair and beyond reproach in your choice is one thing and honorable – but selecting a man who was a Trump appointee known for his vindictive sense of retaliation is another matter entirely.) And beyond all that – It is not only against Special Counsel guidelines to address issues that are not being investigated and are not crimes, but it is against all legal standards. Yet that’s exactly what Special Counsel Hur did, break all guidelines and legal standards, in casting aspersions about President Biden’s mental skills. Which had absolutely nothing to do with what Hur was investigating. Further, these are aspersions which are completely unsubstantiated, given that Mr. Hur is a lawyer and not a medical doctor with a degree in pyschology. Additionally, there is a passage in Hur’s report, which has been picked up by Republicans (and the press), referencing material that was “Willfully withheld” by Joe Biden. The problem is that later in the report, it states clearly -- and critically, since it was the entire point of the investigation -- that there is no evidence to support a criminal charge! None. Zero. No crime. Maintaining such material is not only not a crime, but it is common. It's only a crime if other conditions are met -- including that (like Trump) you don't return it when brought to your attention. And when subpoenaed. And when you try to hide it. It is also utterly beyond reason to believe, as the report suggests, that Joe Biden does not remember when his son Beau died. Joe Biden not only literally wears a reminder of his son, but he uses the story regularly to help console others who are suffering over a loss. The loss of his son is on his mind all the time -- as it would be for any parent. As the President explained in his press conference, the reason he paused after being asked in his interview with Robert Hur about when his son died was because he said he was thinking to himself, “What the hell business is it of yours??!” And to conclude, first and foremost -- Joe Biden makes gaffes, but that’s what they are – gaffes. (We all make lots of gaffes. My dad loved his two sons. And he was incredibly bright and sharp, a doctor who for his evening entertainment would read medical journals. But occasionally he would mix up our birthdays, or a few times would refer to us as “Bob and…the other one.” I suspect most parents do something like that periodically. Indeed, my friend Myles Berkowitz says his dad would often refer to him as “Beth,” his sister! And that Myles, now a father himself, a perfectly rational, vibrant, sharp guy -- not a well-meaning, elderly man with a poor memory -- occasionally refers to his teenage daughter as “Elizabeth,” which is a lovely name, though not his daughter’s, and instead is his ex-wife…) Trump makes gaffes, too -- like looking at a photo of E. Jean Carroll, the woman he was found liable of raping, and identifying her as his former wife Marla Maples. But far worse than mere verbal or mental gaffes, Trump says things that appear to be actually delusional. The examples of delusion are too numerous, but they include saying that there were airports during the Revolutionary War. And that the noise from wind turbines causes cancer. And saying repeatedly that he ran against Barack Obama. And singling out his GOP opponent Nikki Haley to say she was in charge of Capitol security on January 6, confusing her with Speaker Nancy Pelosi. In fact, just this past Friday, Trump said at a rally in Pennsylvania that if President Biden wins reelection, then “We’re not going to have Pennsylvania. They’ll change the name. They’re going to change the name of Pennsylvania.” Whatever on earth that means. (Truly, if you wanted to go on mere “verbal and mental gaffes,” Trump may have had more in that one speech alone on Friday than President Biden has had in all of 2024.) And I'm not even including that the very next day on Saturday, Trump ridiculingly asked in a speech where Nikki Haley’s husband was, because he was never around supporting her. The answer is that last June, her husband Michael Haley enlisted in the National Guard and is currently deployed overseas. Something Nikki Haley mentions all the time, and that Trump must surely know and has seemingly forgotten, since otherwise it’s far too stupid a thing to bring up. Nor that in the same Saturday speech two days ago, Trump said that if a NATO ally didn’t pay up the money it owed, he would not only not help our ally if Russia attacked them, but he would actually encourage Russia to do “whatever the hell it wanted.” To our ally. Which seems to be a combination of delusional thinking, traitorous and borderline demonic. Not to mention the reality there is no "paying" involved with NATO. Trump was confusing NATO with his years-earlier slam of the United Nations, as long as we're talking about mental gaffes. (By the way, if “not paying what you owe” is something for which one deserved to get bombed, then considering his track record with vendors, Trump would have been bombed regularly for decades.) One significant downside to Republicans as a result of the report appears to be it's gotten Democrats to bring up the unrelenting verbal and mental gaffes -- and worse, the delusional statements -- Trump has made in the past, and aggressively post on social media each and every one is continues to make currently. And then there's Trump being found liable for the equivalence of rape, being found guilty of business fraud, having his charity foundation shut down for a “shocking pattern of illegality" and four indictments – none of which are even on point here, being off-topic having nothing to do with his mental capacities. But Republicans are happy to ignore them all, while instead leaping on President Biden, in the midst of him dealing with a terrorist attacking killing 1,400 people and American hostages taken, saying he doesn’t recall all the specifics of some things that happened years ago – which is how he was likely told by his lawyers to respond if unsure of all the specific details – to questions that the Special Counsel, a Trump appointee who has a history of political retribution, had absolutely no legal right to address in his report. And that’s for starters. The good news is that this reprehensible report was made public in February, nine months before the election, and long before most voters are paying attention. There will be the rest of the primaries, the naming of official nominees and then the actual campaign to come. At which point that is what the public will be focusing on. How the candidates campaign, abortion, the economy, immigration, guns, criminal indictments, liability for rape, Insurrection, fascism, the age of both men and more. Yes, Republicans will likely keep addressing the report, but those most affected by it will largely be those not voting for President Biden anyway. I can only repeat what I said at the beginning, though -- the more I think about the Special Counsel Report, the more pleased I am that it exonerates President Biden for any crime related to government documents...and the angrier I get about almost everything else off-topic about it. As a bonus addendum, I offer this link to a superb article by MSNBC legal analyst Andrew Weissman (who, among his many credentials, was Chief of the Fraud Section in the Justice Department and lead prosecutor in Robert Mueller’s Special Counsel’s Office) and Ryan Goodman (founding co-editor of the Just Security website). They present a detailed look at how the Hur Report was written is such a way to mislead the media. The funniest story of the day yesterday was probably when Trump parking garage attorney Alina Habba filed a letter with the court to Judge Lewis Kaplan – the judge in E. Jean Carroll’s defamation suit against Trump – suggesting an improper, unreported, supposedly conflict-of-interest relationship between the judge and Ms. Carroll’s lead attorney, Roberta Kaplan (no relation to the judge). It related to an article in the New York Post that suggested from an unnamed source how he had mentored Ms. Kaplan at a law firm over three decades earlier. Clearly, the hope was to help get the $83 million judgement against her client overturned on appeal.
The problem is that this brought a scathing rebuke from Roberta Kaplan, from which you could almost see the flames soaring out. It referred to baseless claims and that “While both the New York Post and Ms. Habba purport to cite the recollections of an 'unnamed partner'... that partner (if he even exists) clearly has a very flawed memory about events that occurred three decades ago." Roberta Kaplan noted that "The length of our overlap was less than two years. During that relatively brief period more than thirty years ago, I do remember the partners I worked with and none of them was [Judge Lewis Kaplan]." Most damning was her adding that she reserved the right to seek sanctions against Ms. Habba. It's worth mention that an attorney filing what he or she knows is a false claim against a judge faces huge problems. For starts, such an action can get them sanctioned or conceivably disbarred. It is no shock, then, to learn that faster than it’s likely taken you to read this fair, so fast that it was like watching feet spin in Roadrunner cartoon, Alina Habba wrote a letter back to the judge along the lines of, “Oh, no, Your Honor, I didn’t mean that at all.” She tried to explain that she wasn’t making accusations at all. Just raising questions that should perhaps be looked into. Really, Your Honor, honest. Of course a problem with her response is that rather than refer to what was written in the Post article as “allegations” or “unsupported rumors,” instead she kept calling it “information.” But, of course, if what was written was untrue, it is not information at all but rather…well, lies. Legal expert Elie Hoenig said on CNN that “This is a bogus motion by the Trump team.” He noted how “Every judge in that courthouse knows, socializes with, has worked with, maybe mentored, dozen dozens, hundreds of attorneys in the city. I used to practice in that courthouse in front of judges who used to be my colleagues and supervisors. That is not enough for a conflict of interest." To which he then added, “"They have their appeal issues. This ain't one of them." And all this from the woman who only a couple weeks ago said during a podcast interview that she’d rather be pretty than smart, because you can “fake being smart.” Perhaps she’d have been better served by going for “smart,” because apparently it’s difficult for some people to even fake being smart. We’ve heard Trump say it relentlessly. “I don’t know that woman. I have no idea who that woman is. I’ve never met her. I don’t know who she is.”
He still is saying it, after the $83 million defamation judgement against him. Which followed up the $5 million defamation judgement against. All after having been found liable for, what the judge wrote, was the equivalence of rape. “I don’t know that woman. I have no idea who that woman is. I’ve never met her. I don’t know who she is.” Two things leap out. The first is obvious. Most everyone paying attention has seen the photo of Trump with E. Jean Carroll. Laughing with him, standing there at an event together with her then-husband and Trump’s then-wife. And when I say “most everyone,” I include Trump, who was shown the photo at his deposition. And famously mis-identified E. Jean Carroll as being his second wife. And still, after knowing that he saw the photo of him with E. Jean Carroll, Trump still says – “I don’t know that woman. I have no idea who that woman is. I’ve never met her. I don’t know who she is.” The second thing came to me the other day. And what struck me is that, as obvious as it is, I haven’t heard any legal analyst or news reporter address the point. Maybe someone has – after all, I haven’t seen every moment of TV commentary – but I haven’t. And it came to me the other day after hearing Trump once again say, “I don’t know that woman. I have no idea who that woman is. I’ve never met her. I don’t know who she is.” The thought was – It's my understanding that it is not a requirement for a rapist to actually know the victim he rapes. I’m sure some do. I’m equally sure that some, or many, or – for all I know - maybe even most don’t. And either way, it’s certainly not a requirement. Further, it makes one wonder how many women does a man have to rape for there to be so many you can't remember them all? Yes, that’s a little unfair to ask, I know, but only a little. Because if someone raped only one woman, and it was 30 years ago, I really do think the person remember. Sure, I assume it’s possible to emotionally block out your very worst, horrific moment in life and surround it with a protective wall. But given Trump’s Entertainment Tonight video bragging about women letting stars grab them in the p*ssy, and his many other comments on the subject about women accusers not being his “type” (mind you, I’m not sure what Trump’s “type” is to rape, because he’s never said), he doesn’t seem like the person who would block out rape as the worst moment in his life. He seems closer to a guy who’d write it down in his diary. Indeed, when asked in his deposition if he believed his “grab them” comment, what he answered was that, yes, he thought this was largely true over the last million years, “unfortunately,” he thoughtfully noted. But then bizarrely added “Or fortunately.” Fortunately?? Yes, he really said that. So, no, a guy who says it is “fortunate” that throughout history women let stars sexually abuse them is not someone who it would seem is likely to have blocked out his memory of sexually abusing a woman out of horrified regret. Which returns to the question of how many woman does a man have to rape for him to not remember them all? A question I ask because I do think it’s possible that he doesn’t remember raping E. Jean Carroll. After all, I sense that Trump has a great delusional capacity for convincing himself of almost anything he doesn’t want to be true. (That said, of course, it is also possible that Trump does indeed remember.) Not that “not remembering” who you raped is a requirement for being found liable for your action -- as the jury knew and determined. And fined him twice for a total of $88 million in damages. But, to be totally fair, for all we know, maybe E. Jean Carroll is just one of many woman Trump has raped, and so he simply doesn’t remember her. Or even, as he insists, doesn't know her. After all, he has been very insistent about that. “I don’t know that woman. I have no idea who that woman is. I’ve never met her. I don’t know who she is.” Which, in the end, returns us to my earlier comment that started this all – It's my understanding that it is not a requirement for a rapist to actually know the victim he rapes. And leads to a final thought. For all those Republicans who cry out "Witch hunt!" and "New York jury!!" and any other deeply-anxious insistence of Trump's innocence, in the end the clearest evidence that Republican officials get the point that Trump is liable of the equivalence of rape and very guilty of defamation is because -- unlike every other case Trump has been indicted for, when they've rushed to his defense and tried their best to explain away those indictments as Trump having done nothing wrong (even in a case of taking classified government documents where there are numerous photos of those documents actually lying around his property) -- not a single Republican official has cried out in mournful defense of Trump against E. Jean Carroll and insisted she is lying and Trump did nothing wrong and that, like he insists, that he doesn’t know her. Because what they know is that if they do that…they risk getting sued for defamation, too. And know they would lose. Because what they also know is it’s not a requirement that they actually know the victim they would be defaming either. As has been widely reported, in yesterday's Appeals Court hearing on Trump's claim of "absolute immunity," Judge Florence Pan asked a hypothetical question about if a President who used the Navy Seals to assassinate a political rival could be criminally prosecuted. Trump lawyer John Sauer made the bizarre assertion that unless a president was impeached and convicted on a charge first, he couldn't be prosecuted later for it and be held accountable in any way, since it wouldn't be a criminal act. I refer to this as a "bizarre" assertion because -- well, it was the most polite adjective I could think of. The only thing that Mr. Sauer left out was saying that his client should henceforth no longer be referred to as Trump, but as "007," since in his mind he apparently has a license to kill. That would certainly fit in with Trump's egomaniacal fantasies about himself, after all, not to mention his acolytes' ongoing grandiose fan art. DOJ attorney James Pearce responded by asking "What kind of world we are living in if a President orders his Seal team to assassinate a political rival" and it's not a criminal act. Calling it a "frightening future," he offered the idea that under this Trump- Sauer theory such a President could simply resign from office before an impeachment, thereby evading prosecution and all legal accountability, since there would be no criminal act. I should add that another reason I refer to John Sauer's claim as "bizarre" is because even I could immediately think of two other ways a President could get away with murder, ploys that are even worse than what attorney Pearce suggested. And the closest I came to law school was walking past the School of Law building on campus when at UCLA for graduate school in screenwriting. One is the scenario where the House of Representatives is controlled by the President's own party and doesn't impeach him for the assassination -- or the Senate is controlled by the President's party and doesn't convict him -- in which case the President not only would get away with murder, but he would continue being President. No resignation necessary. And the other gambit would be even more basic -- that no one in Congress is even aware that the President was involved in ordering the murder, and it's not discovered until long after the Chief Executive finishes his or her term -- or perhaps is even re-elected -- and then leaves office. No impeachment, no crime. These aren't difficult situations to come up with. And there are three of them -- at least. And yet Trump and his lawyer (one has to suspect at Trump's bidding, since the suggestion is so utterly bizarre, horrifying and infantile) actually put them on the table in a court of law. Actually claiming that a President could order the murder of a political rival and that, unless impeached and convicted, it wouldn't be a crime. By the way, on top of this lunacy, there are two things they didn't seem to consider when making the "explanation." The first is that with the explanation offered being so monumentally childish, sickeningly unthinkable and devoid of legal thinking, it risks putting the Appeals judges in the position of discrediting all of attorney Sauer's subsequent arguments for having no clue about the law or what he's talking about. And the second is Trump here is arguing that, right now, Joe Biden could call in the Navy Seals to murder his political rival -- who, of course, is Trump! -- and not be prosecuted for it as a crime, either because Democrats control the Senate and (at least in Trump's fevered mind) wouldn't convict Biden in an impeachment trial, or it could be covered up and not discovered until long after the President leaves office. But…but…but here's one more reason why Trump's legal team is so weirdly incompetent. After the hearing, a small press event was held with Trump and his lawyers. And one of his legal team, John Lauro, in arguing how grossly illegal he believed the DOJ's prosecution of Trump was for his part in the Insurrection, stated for the cameras -- "Joe Biden could be prosecuted for trying to stop this man from becoming the next president of the United States." Now, stop a moment and consider that. Right after arguing in Appeals Court that Presidents have "absolute immunity," even if he orders a murder and isn't impeached -- it turns out that Trump lawyer John Lauro is saying he doesn't believe that a President has "absolute immunity"!! This yesterday was Trump's legal team. It turns out that another of his lawyers, parking garage attorney Alina Habba, was on to something when she suggested on Monday that she'd rather be pretty than smart because, as she put it, "I can fake being smart." Perhaps this is merely the standard of the only lawyers who will agree to work for Trump these days. And she was just talking about fitting in. |
AuthorRobert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting. Feedspot Badge of Honor
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