The decision of a special counsel to not recommend criminal charges against U.S. President Joe Biden for his handling of classified materials has been quickly overshadowed by a larger issue: concerns about the president’s age and memory.
The report, released by special counsel Robert Hur on Thursday after a year-long investigation, included repeated references to Biden’s “hazy,” “fuzzy,” “faulty” and “poor” memory during interviews with investigators and the ghostwriter of his memoirs. Those lapses, Hur said, would likely be enough to convince a jury that Biden didn’t “willfully” break the law in keeping classified documents at his home and private offices over his decades-long political career.
Biden forcefully defended himself Thursday against the report, which he and the White House said was “gratuitous” in noting he could not recall defining milestones in his own life, such as when his son Beau died or when he served as vice-president.
“My memory is fine,” Biden told reporters.
“How in the hell dare he raise that,” he added, growing visibly angry over the suggestion he didn’t remember that Beau Biden died from brain cancer in 2015. “Frankly, when I was asked the question I thought to myself, it wasn’t any of their damn business. … I don’t need anyone to remind me when he passed away.”
Ian Sams, a spokesperson for the White House counsel’s office, and Vice President Kamala Harris both suggested at separate events on Friday that the references to Biden’s memory by Hur, a Republican, were fueled by politics. Republican politicians have pointed to Biden’s gaffes as proof the 81-year-old president is unfit for office, and a majority of voters in polls have said they’re concerned about a second Biden term because of his age.
“The way that the president’s demeanor in that report was characterized could not be more wrong on the facts and clearly politically motivated, gratuitous,” Harris told reporters.
But legal experts suggest the report was simply laying out the reasons why charges weren’t being laid — namely, the potential for jurors to find reasonable doubt.
What does the report say?
A key section of Hur’s report that has seized attention is in the executive summary, when the special counsel explains why he doesn’t recommend charges for Biden’s retention of classified documents related to U.S. military operations in Afghanistan.
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Hur admits a “shortage” of direct, concrete evidence that Biden willfully kept the materials and shared them with his ghostwriter in 2017, including correspondence, photos and witnesses.
“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,” the report says.
“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”
Mary Fan, a law professor at the University of Washington, says that last sentence is key. “Willfulness” that a defendant knew they were breaking the law is among the toughest standards that prosecutors have to meet, she said, and requires evidence solid enough to overcome the doubts of a jury.
“A case should not be brought unless the prosecutor believes that a jury could find the person guilty beyond a reasonable doubt,” she said, adding the standard is high because prosecutions are costly and deeply affects a defendant’s life.
“You can’t just throw charges at the wall and see if they’ll stick.”
Later, in a more detailed section on the Afghanistan documents, the report lists the evidence that might give jurors reasonable doubt against conviction, “including Mr. Biden’s cooperation with the investigation, his diminished faculties in advancing age, and his sympathetic demeanor.”
“These factors will likely make it difficult for jurors to conclude he had criminal intent,” it says.
In a letter submitted to Hur on Monday in response to the report, White House counsel Richard Sauber and Biden’s personal attorney Bob Bauer objected to the characterization of Biden’s memory, which they said was not “accurate or appropriate.”
“If the evidence not does establish guilt, then discussing the jury impact of President Biden’s hypothetical testimony at a trial that will never occur is entirely superfluous,” they wrote.
Several other former U.S. Justice Department officials, including former attorney general Eric Holder, said the language in the report violates DOJ regulations and norms against using prejudicial language, particularly against political figures.
Fan would not comment on whether she agrees with that view.
“I think bottom line, what (the special counsel’s office is) trying to do is they’re trying to explain why they don’t think they can convince a jury beyond a reasonable doubt — why they think it’s their ethical duty to not bring charges,” she said.
The report nevertheless comes at a damaging time for Biden, who is under increasing scrutiny over his verbal gaffes and advancing age as he seeks re-election in November’s elections.
In an August poll by The Associated Press-NORC Center for Public Affairs, 77 per cent of U.S. adults said Biden is too old to be effective for four more years. The issue had bipartisan agreement, with 89 per cent of Republicans and 69 per cent of Democrats saying Biden’s age is a problem.
A Reuters-Ipsos poll last month also found three-quarters of Americans believe Biden is too old.
Twice this week, Biden has confused world leaders with their predecessors who left office years ago and have recently died. On Wednesday, he referred to the late German chancellor Helmut Kohl, who died in 2017, when recalling a conversation he had with then-chancellor Angela Merkel in 2021. That came after he mixed up French President Emmanuel Macron with the late Francois Mitterrand, who was in power from 1981 to 1995 and died in 1996, on Sunday.
In remarks to reporters after the release of the report on Thursday, in response to a question about the Middle East conflict, Biden called Egyptian President Abdel Fattah al-Sisi “the president of Mexico.”
White House press secretary Karine Jean-Pierre has told reporters such mix-ups happen “to everyone,” pointing to several politicians who have misspoken similarly.
Former president Donald Trump, who is also seeking re-election, has stumbled over his speech and misidentified people as well in recent weeks. Last month, he repeatedly confused his Republican opponent Nikki Haley with Nancy Pelosi, the California Democrat who was speaker of the House of Representatives when he was in power.
The Reuters-Ipsos poll found half of Americans surveyed think Trump, 77, is also too old to serve in office.
Trump is facing criminal charges for his own retention of classified documents after he left office. But the report makes clear that case is different from Biden’s in that Trump allegedly went to criminal lengths to refuse efforts to return the documents he possessed. Biden, by contrast, cooperated with investigators.
On Friday, Harris, Jean-Pierre and other White House officials underscored that the special counsel’s report does not reflect the Biden they interact with behind the scenes, and also pointed to his record of accomplishments as president.
“What we see from this president is a president that is zeroed in and focused on the American people,” Jean-Pierre said.