Exoneration shouldn’t be this painful. This week, a special counsel’s report concluded that no criminal charges were warranted against Joe Biden for hanging on to classified materials after his vice presidential term. 

Attorney general Merrick Garland appointed Robert Hur, a Republican, to investigate Biden. It’s another example of what Josh Marshall calls the universal rule: “Republican special counsels are chosen to investigate Democrats.”

However, the DC press corps is, predictably, taking the emotionally charged impressions of a two-time Trump appointee at face value. A front-page story in the Times crowed that Hur’s special counsel’s report referred to Biden as a “well-meaning, elderly man with a poor memory.” The strange line jumps out of the dry 345-page document, as it was no doubt intended to do: “We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” 

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Instead of sticking to the facts, Hur indulged in colorful speculation about how a hypothetical jury might see Biden years from now, should a case ever be brought to trial. But according to his report, the evidence isn’t there. 

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It’s no surprise that a two-time Trump appointee like Hur would come up with a juicy soundbite that perfectly meshes with the Republicans’ number one political attack on President Biden. Instead of sticking to the facts, Hur indulged in colorful speculation about how a hypothetical jury might see Biden years from now, should a case ever be brought to trial. But according to his report, the evidence isn’t there. 

The report explains that Biden comes off as sympathetic and well-meaning because, unlike Trump, he cooperated fully and willingly with investigators: “[Biden’s] cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully – that is, with intent to break the law – as the statute requires.” Such forthright behavior would indeed impress a jury, but Hur is spinning Biden’s good intentions as embarrassing or nefarious. 

The report also leaves out important context. Hur’s impressions are distilled from a five-hour interview conducted the day after the October 7 attacks on Israel while Biden was responding to the biggest national security crisis of his term. While speaking to investigators, the president was juggling calls with heads of state, cabinet secretaries, and legislators, as well as repeated meetings with his own national security team. 

Biden’s memory is somewhat relevant to his defense against these allegations, but Hur brought it up nine times and even resorted to cheap shots about Biden not recalling what year his son Beau died or the dates of his vice presidency. Without reviewing the interview, it’s impossible to know whether these are significant lapses. However, Hur’s undisguised animus should arouse our skepticism. 

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Here’s the tip jar. $10? Thanks!

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As vice president, Biden was allowed to have classified materials at home for eight years. However, a month after his term ended, he remarked to his ghostwriter that he still had some classified materials at home. It was this disclosure that Hur considers the strongest potential evidence of criminality. However, Biden later told Hur’s investigators that he didn’t deliberately keep those documents all these years, he simply forgot to return them. The report allows that “finding classified documents at home less than a month after leaving office could have been an unremarkable and forgettable event.” And indeed, according to the report, there’s no indication that Biden ever mentioned them again. 

The report also concedes that Biden believed he was entitled to keep classified handwritten notes from his time in office because Ronald Reagan famously hung on to his diaries. The report suggests that Biden may have gotten bad or conflicting advice on whether the notes were personal property that he was entitled to keep. All this counts against the idea that he had any criminal intent. 

Finally, Biden wouldn’t be the first person to stress the limitations of his memory when talking to prosecutors. “I do not recall” is a cliché in Washington and its deployment generally suggests savvy rather than befuddlement.