Special counsel defends highlighting Biden’s memory lapses in testimony

U.S. lawmakers turned a Tuesday hearing on President Joe Biden’s handling of classified documents into a proxy battle between the Democratic president and Republican front-runner Donald Trump, as a newly released transcript of Biden’s testimony last fall showed that he repeatedly insisted he never meant to retain classified information after he left the vice-presidency.

Special counsel Robert Hur, testifying before the House judiciary committee, stood steadfastly by the assessments in his 345-page report that questioned Biden’s age and mental competence but recommended no criminal charges.

“What I wrote is what I believe the evidence shows, and what I expect jurors would perceive and believe,” Hur said. “I did not sanitize my explanation. Nor did I disparage the president unfairly.”

The transcript of hours of interviews between Biden and the special counsel released Tuesday provides a more textured picture of the roughly yearlong investigation, filling in some of the gaps left by Hur’s and Biden’s accounting of the exchanges.

But there was no guarantee the hearing or transcript would alter preconceived notions about the president, the special counsel who investigated him or Trump, particularly in a hard-fought election year.

Republicans say Biden given free pass

While Biden was adamant that he treated classified information seriously, the transcript shows that he was at times fuzzy about dates and details and said he was unfamiliar with the paper trail for some of the sensitive documents he handled. 

WATCH | Every time Biden’s memory is criticized in Hur’s reort:

Every time Biden’s memory is criticized in classified documents report | About That

A newly released special counsel report found that U.S. President Joe Biden ‘willfully retained and disclosed’ classified material after leaving the vice presidency, but that criminal charges were not warranted. Andrew Chang breaks down the report, and its repeated references to Biden’s ‘significantly limited’ memory.

The hearing played out as both Biden and Trump were on the cusp of claiming their party’s nominations, and the party lines calcified almost immediately over which leader meant to hang on to classified documents — or rather, who “willfully” retained them — and who didn’t. 

Republicans argued Biden was being given a pass by his own Justice Department and that Trump had been unfairly victimized by prosecutors. Democrats, for their part, stressed Biden’s co-operation in the investigation and strongly contrasted that with the separate criminal case against Trump, who refused to return classified documents requested by the National Archives that he had at his Florida estate.

Democrats started off their questioning by hitting hard at the contrast between Biden and Trump, focusing more on the latter’s criminal case. Rep. Jerry Nadler of New York, the ranking Democrat, asked whether Biden’s willingness to comply with investigators and turn over documents contributed to the decision not to charge him.

“That was a factor in our analysis,” Hur said.

Democrats also stressed, regardless of Hur’s commentary about Biden’s age and memory, that the special counsel exonerated him in the end.

Biden offered ‘complete’ co-operation: Democrat

Rep. Jamie Raskin, a Maryland Democrat, said Biden “offered complete and unhesitatingly co-operation with the special counsel’s investigation in the Justice Department” in sharp contrast with the conduct of Trump.

Republicans, meanwhile, insisted Trump was being unfairly singled out and vilified, questioning how the two cases were really all that different.

Rep. Tom McClintock, a California Republican, called it a “glaring double standard.”

A man with papers in front of him sits at a microphone. People sit behind him. Chair Jim Jordan is visible on a screen behind them all.
Hur listens during the committee hearing. (Jacquelyn Martin/The Associated Press)

“Donald Trump’s being prosecuted for exactly the same act that you documented Joe Biden committed,” he told Hur.

Hur’s report cited evidence that Biden willfully held on to highly classified information and shared it with a ghostwriter, based on audio of the conversations between the two men in which Biden said he had just come across some classified documents at his home. 

According to the transcript, Biden said he did not recall the exchange, or that he had actually discovered any documents. He said if he had discussed anything questionable with the ghostwriter, it was in referring to a 20-page sensitive memo he had written to then-president Barack Obama in 2009 arguing against surging troops in Afghanistan that he wanted to ensure didn’t make it into publication.

Hur needed ‘to show my work’

Hur said he was aware of the need to explain in great detail why he’d decided not to charge the president and why the case didn’t meet the standard for criminal charges. Such explanations are common but usually kept confidential. 

But there’s a tradition at the Justice Department to release such documents publicly and so as Hur was working on his report, he almost certainly would have understood that the document was going to see the light of the day.

“The need to show my work was especially strong here,” Hur said. “The attorney general had appointed me to investigate the actions of the attorney general’s boss, the sitting president of the United States. I knew that for my decision to be credible, I could not simply announce that I recommended no criminal charges and leave it at that. I needed to explain why.”

Two side-by-side images of cardboard boxes stacked high with yellow post-it notes on many of them.
This image, contained in Hur’s report, shows boxes in a storage closet at the Penn Biden Center in Washington, in March 2021. (U.S. Justice Department/The Associated Press)

He added that “the evidence and the president himself put his memory squarely at issue.”

In his interviews, Biden repeatedly told prosecutors that he did not know how classified documents ended up at his home and former Penn Biden Center office in Washington.

“I have no idea,” he said.

He also insisted that had he known they were there, he would have returned them to the government.

Hur never asked Biden about timing of son’s death

The president did acknowledge that he intentionally held on to his personal diaries — which officials said contained classified information. Biden insisted they were his own property, a claim also asserted by previous presidents and vice presidents, and that he had a right to keep them. 

He also acknowledged that he was “never that organized,” as prosecutors pressed him on why some of the documents were located in different places. 

Biden first sat down with Hur during a time of crisis — one day after the devastating Hamas attack on Israel on Oct. 7.

Confusion over the timing of the death of Biden’s son Beau — who died May 30, 2015 — was highlighted by Hur in his report as an example of the president’s memory lapses. But the transcript shows Hur never asked Biden about his son specifically, as a visibly angry Biden had suggested in comments to reporters the day the report was released.

“How in the hell dare he raise that,” Biden said of Hur. “Frankly, when I was asked the question, I thought to myself it wasn’t any of their damn business.”

Transcript raises questions about Hur, Biden depictions

But the transcript suggests the exchange was less revealing about Biden’s memory than Hur let on, and that Biden’s recollection of it during his emotional White House remarks was incorrect.

Hur asked Biden about where he kept the things that he was “actively working on” while he was living in a rental home in Virginia immediately after leaving the vice presidency in January 2017. And in that context, it was Biden himself who brought up Beau’s illness and death as he talked about a book he’d published later in 2017 about that painful time.

“What month did Beau die?” Biden mused, adding, “Oh God, May 30th.”

A White House lawyer then chimed in with the year, 2015.

“Was it 2015 he died?” Biden asked again.

Biden went on to recount in detail the story contained in his book, Promise Me, Dad, of how his late son had encouraged him to remain engaged in public life after the Obama administration ended.

The Department of Justice redacted information about other people involved in the case, and the National Security Council and the State Department blacked out some details relating to sensitive intelligence and foreign affairs matters.

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