Special Counsel Report on Biden’s Handling of Classified Information Raises Concerns about Inappropriate Editorializing
In a recent report by special counsel Robert Hur on President Joe Biden’s handling of classified information, concerns have been raised regarding inappropriate editorializing. While Hur concluded that Biden should not be prosecuted for retaining and sharing classified information, the report contained comments that gratuitously attacked Biden’s age and memory. This has sparked criticism from legal experts who argue that such comments go against longstanding Justice Department principles.
The report characterized Biden as “a sympathetic, well-meaning, elderly man with a poor memory.” Legal experts argue that this characterization goes beyond what is necessary for a prosecutorial assessment and contravenes principles about what prosecutors can say publicly when they decide not to bring charges. Richard Painter, former White House ethics lawyer under President George W. Bush, stated that Hur showed terrible judgment in making these comments, which will only exacerbate the political firestorm around Biden’s age.
The Justice Department’s Principles of Federal Prosecution emphasize the importance of remaining sensitive to the privacy and reputation interests of uncharged parties. Prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged parties. While Hur had an obligation to write a report explaining either the prosecution or the decision not to bring charges, legal experts argue that he went beyond his mandate by including personal opinions on Biden’s memory more generally.
One of the most offensive parts of the report was when Hur observed that Biden did not remember when his son Beau died. Legal experts argue that this subject was well beyond the scope of the inquiry and its inclusion was needlessly personal and painful. Speculating about possible legal defenses an individual might raise if they were charged with a crime and how they might be perceived based on age and memory is unnecessary and unrelated to evaluating whether Biden committed a crime.
Moreover, legal experts argue that Hur’s language crossed the boundary from descriptive to inappropriate editorializing. He used evocative language to surmise how a hypothetical jury would view Biden, even though it would be highly unlikely for Biden to take the stand in a criminal trial. This unnecessary shot at Biden reinforces a prominent line of partisan political attack against the president and reflects poorly on both Hur and the Department of Justice.
The report has drawn comparisons to FBI Director James Comey’s public comments surrounding the investigation into Hillary Clinton’s private email server in 2016. Comey announced that he was not charging Clinton with any crime but went on to denounce her actions and judgment harshly. An inspector general review concluded that Comey’s announcement violated Department policy by criticizing Clinton’s uncharged conduct. While Hur did not violate any procedures, his deviation from the prosecutorial standard of not smearing the uncharged is troubling, especially during an election year.
Legal experts suggest that it may be appropriate for the inspector general to investigate whether Hur’s conduct violated the Hatch Act, which prohibits federal employees from using their official authority to interfere in an election. They also argue that the rules and regulations on special counsels should be revised to remind them about the principles of federal prosecution and caution them against using disparaging language about uncharged parties that is unnecessary.
In conclusion, while special counsel Robert Hur’s report found that President Joe Biden should not be prosecuted for his handling of classified information, concerns have been raised about inappropriate editorializing in the report. Legal experts argue that Hur’s comments about Biden’s age and memory go beyond what is necessary for a prosecutorial assessment and contravene Justice Department principles. This episode highlights the need to revise rules and regulations on special counsels to ensure they adhere to principles of federal prosecution and avoid making unnecessary disparaging statements about uncharged parties.
