Lawmakers in both parties ignore nuances of special counsel Hur’s report

Lawmakers largely muddied the waters in seeking to capitalize on special counsel Robert Hur’s report on President Biden's classified records investigation, offering incorrect conclusions about why the president skirted any charges. 

National security law experts say members on both sides ignored clear nuances in Hur’s decision not to recommend any charges for Biden, wrongly suggesting charges were declined due only to memory issues or that the report cleared the president entirely.

“The feigned ignorance of these folks is overwhelming and undermines their own credibility,” Mark Zaid, a national security law expert, told The Hill, arguing both sides acted to “bolster their ideological and political agenda.”

He said Democrats didn’t acknowledge “harmful” assessments of Biden’s actions, while, in comparing Trump’s matter to that of the president’s, there was a “failure of the Republicans to reconcile the two and recognize a distinction between the two.”

“The majority of them are experienced lawyers. This interpretation does not require rocket science,” he said.

During the five-hour hearing this week, Republican’s zeroed in on language in the law that targets those who “willfully retain” national defense information, suggesting the phrase was a “get out of jail free” card for Biden. 

Rep. Matt Gaetz (R-Fla.) dubbed it the “senile cooperator theory” while Rep. Tom McClintock (R-Calif.) suggested, “All I have to do when taking home classified materials is say, ‘I am sorry. I am getting old. My memory is not so great.” 

Meanwhile, numerous Democrats borrowed a phrase from former President Trump in calling the report a “total exoneration” for Biden — a characterization Hur would later forcefully dispute.

More than Congress’s other panels, the House Judiciary Committee is filled with longtime lawyers, former prosecutors, and even constitutional scholars, though members are not required to hold a law degree.

But those experts appeared to be tripped up by portions of the Espionage Act —the same law being used to prosecute Trump — in how it addresses whether a person willfully retained records.

While intent matters little in most of the criminal code, it plays a greater role in some statutes, particularly those involving speech.

And in the case of intelligence community and military workers who regularly handle national defense information, the law accounts for mistakes, even in the handling of highly classified records.

“The best way to think about why willfulness matters is to think about what would happen if it wasn't there,” said Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm specializing in national security law.

Zaid said whether it’s accidentally taking home their work or discovering documents years after they’ve retired, misplacement of classified records is not uncommon.

“The reality is there is mishandling of classified information that occurs on a daily basis. Routinely people mistakenly take documents home,” he said, noting that typically, only the most egregious cases are prosecuted, while others risk revocation of their security clearance or other forms of adverse action.

But for Biden, the case was much more complex than whether he simply forgot he was in possession of the documents.

Hur notes in his report it’s not clear how the documents likely packed up and moved by White House staff made it to Biden’s office at the Penn Biden Center and his home. He noted their storage in the garage among “household detritus” as a likely indication the president was unaware they were there.

While serving as vice president, Biden was permitted to take classified records to his home at the time — another factor that may have played a role in the records being improperly transferred.

Similarly, Trump is not charged with retaining any documents taken during the transition but returned following a subpoena. He does face charges for keeping documents and not complying with a demand to return them.

Biden kept notebooks reflecting on his time in office the referenced classified documents — a gray area of the law which he viewed as akin to former President Reagan keeping his diaries from his time in office. Reagan’s retention of his diaries, which contained references to classified information, was widely known at the time and never investigated. 

Though Biden also seemingly acknowledged having classified information in discussions with his ghostwriter, it’s not clear what he was referencing when he said he “just found all the classified stuff downstairs.” 

“Prosecutor to prosecutor, I certainly agree with you that the evidence in the form of the audio recorded statement where the president said to his ghostwriter, ‘I just found all the classified stuff downstairs’ — that is evidence that any prosecutor would present as significant evidence in a case if this went to trial,” Hur said in response to a question from Rep. Ken Buck (R-Colo.), who served as a prosecutor himself.

But Hur said he may have been noting a second folder that did not clearly contain national defense information and that “it would be difficult for the government to prove beyond a reasonable doubt that he possessed the one that did.”

“As a prosecutor, you need to assess with a very cold eye the strengths of your case and the weaknesses of your case and try to anticipate arguments that defense counsel might well present at trial,” Hur said.

Proving Biden knew he had the documents is a fundamental weakness for any potential case.

“You can't prove that he [willfully] retained them, no matter how long they're in his house, if he doesn't know they're there,” McClanahan said.

“If I slip something into your box, as you're walking out of the office, and you stick it in your garage for two years, but you never unpacked the box, you don't know that I've slipped the classified CD in there; you haven't done anything wrong.”

Zaid called the admission to the ghostwriter a potential vulnerability for Biden but said many other factors in the case play to his favor.

“Other than the notebook, there is no evidence he knew or planned in his taking them to the Biden Penn center and to his Delaware home, etc.,” he said.

“They were the ones who found the records first, and notified proper authorities, timely returned them, cooperated every step of the way — all the distinctions with the Trump case. And then you get into the memory aspect, where that further undermines or weakens the intentionality and willfulness as to what took place.”

Hur also noted Biden’s cooperation in the report, something he said “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.”

But many of those same details also underlie that the classified records were not handled with the care required — something Hur said made clear his report was not an exoneration of Biden.

Hur stressed any case against Biden would face an uphill battle in convincing a jury beyond a reasonable doubt, but the report was clearly critical, stating at the top that he “uncovered evidence that President Biden willfully retained and disclosed classified materials.”

And Hur also notes there were at least three instances in which Biden “read from classified entries aloud to his ghostwriter nearly verbatim” from his notebooks, despite having otherwise “skipped over presumptively classified material.”

Hur became irritated during the hearing as Democrats suggested his report exonerated Biden, pointedly noting the word does not appear in his report.

“That is a deliberate mischaracterization of a report and a blatant misrepresentation of the wrongdoing that President Biden committed regardless of not being prosecuted,” Zaid said.

“They undermine their own credibility by taking that type of position. And as experienced lawyers, they should absolutely know better.”