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.
Robert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting.
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