Biden cleared but not without cost

Classified documents investigation question age and mental capacity

The decision yesterday not to file criminal charges against US President Joe Biden for mishandling classified documents should have been an unequivocal legal exoneration. Instead, it was a political disaster. The investigation into Biden’s handling of the documents after being vice-president concluded that he was a “well-meaning, elderly man with a poor memory” and had “diminished faculties in advancing age” — such startling assertions that they prompted a fiery and emotional attempt at political damage control from the president within hours.

Speaking to the cameras from the White House, Biden yesterday blasted the report by Robert Hur, the special counsel, accusing the report’s authors of “extraneous commentary” about his age and mental capacity.

“They don’t know what they’re talking about,” the President said flatly.

Biden appeared to take special exception to the report’s assertion that during interviews with FBI investigators, he could not recall what year his son Beau died.

“How the hell dare he raise that,” the President said, appearing to choke back tears.

“Every Memorial Day we hold a service remembering him attended by friends and family and the people who loved him. I don’t need anyone, I don’t need anyone to remind me when he passed away.”

The President’s remarkable appearance before reporters underscored the political damage that Hur’s report could do despite the lack of criminal charges.

The report’s discussion of the President’s memory and age was repeated throughout the 345-page document, and was quickly seized on by Republicans, including Biden’s likely opponent in the 2024 election, former president Donald Trump.

In the report, Hur said the memory of the then-80-year-old was so hazy during five hours of interviews over two days that it would be difficult to convince jurors that Biden knew his handling of the documents was wrong.

Hur predicted in the report that if the President was charged, his lawyers “would emphasise these limitations in his recall”.

In part because of Biden’s memory, Hur declined to recommend charging the President for what the report described as wilful retention of national security secrets, including some documents shared by the President that implicated “sensitive intelligence sources and methods”.

“It would be difficult to convince a jury that they should convict him — by then a former president well into his 80s — of a serious felony that requires a mental state of willfulness,” Hur wrote.

In his own written statement issued just after the report became public, Biden appeared to suggest a reason for why he was distracted.

“I was so determined to give the special counsel what they needed that I went forward with five hours of inperson interviews over two days on October 8 and 9 of last year, even though Israel had just been attacked on October 7 and I was in the middle of handling an international crisis,” he wrote.

“I just believed that’s what I owed the American people.”

The President’s lawyers, Bob Bauer and Richard Sauber, took exception in a February 5 letter with Hur’s description of the President’s memory.

“It is hardly fair to concede that the President would be asked about events years in the past, press him to give his ‘best’ recollections and then fault him for his limited memory,” the lawyers wrote.

“The President’s inability to recall dates or details of events that happened years ago is neither surprising nor unusual.”

Concerns about Biden’s age have been a recurring theme of his presidency over the past three years. Fuelled in part by video of the President appearing weak or stumbling in public, many voters have expressed concern about his mental and physical fitness as he seeks to remain in the White House until he is 86.

Biden has tried to laugh off the issue, insisting that with age comes wisdom.

During fundraisers on Thursday, Biden twice recalled a 2021 conversation with Helmut Kohl, the one-time German chancellor, who died in 2017. His spokesperson later said he misspoke, as many public officials do.

In his remarks yesterday, Biden confused the presidents of Mexico and Egypt, making exactly the kind of mistake that his staff would have wanted him to avoid at a time when his mental acuity is being questioned.

Yesterday, he angrily disputed the suggestion that he was not fit to serve. Asked about polls showing that the American people have concerns about his age, he pointed at the reporter and said: “That is your judgment. That is your judgment.”

He then added: “That is not the judgment of the press,” though he appeared to mean it was not the judgment of the public.

Asked why he should not step aside and let someone else in his party be the Democratic nominee, he said: “Because I’m the most qualified person in this country to be President of the United States and finish the job I started.”

Biden’s aides have repeatedly insisted that despite how the President sometimes comes across in public, he remains sharp and tireless when he is in private, in discussions with aides or in meetings with foreign leaders.

But the report released yesterday challenges those descriptions, not by relying on short snippets of Biden posted to social media but rather on hourslong interactions with the President in controlled settings. And the descriptions of his memory were more vivid than what is normally found in legal documents like the one released yesterday.

In the report, Hur wrote that in a 2017 recorded conversation between Biden and the ghostwriter for his book, Biden struggled to “remember events” and was “straining at times to read and relay his own notebook entries”.

Hur said that the interviews in 2023 with investigators were even worse.

“He did not remember when he was vice-president, forgetting on the first day of the interview when his term ended (‘if it was 2013 — when did I stop being vice-president?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still vicepresident?’),” the report said. “He did not remember, even within several years, when his son Beau died.”

Hur was nominated by Trump to be the US attorney in Maryland, but was later chosen by AttorneyGeneral Merrick Garland to lead the investigation into Biden’s handling of classified documents.

Biden’s lawyers have been arguing for more than a year that the discovery of classified documents at Biden’s offices and Delaware home was no more than accidental oversight, and certainly not criminal behaviour like the 37 felony charges brought against Trump for his handling of classified material after leaving office.

While concluding that “the evidence does not establish Biden’s guilt beyond a reasonable doubt”, Hur nonetheless wrote that Biden took classified documents and notebooks about Afghanistan with him in

2017 after leaving the vice presidency, and shared some of those documents with his ghostwriter.

The tough language by Hur could set the stage for Trump and his allies to launch a fresh round of political attacks on Biden for doing the very same kinds of things Trump is accused of doing.

And it will probably complicate the months-long effort by Biden and his advisers to draw sharp distinctions between the actions of the two presidents.

How the hell dare he raise that . . . I don’t need anyone to remind me when he passed away. US President Joe Biden on his son Beau’s death