The Hur Report's Comments on Biden's Age is not Saying What Everyone Thinks it is

If you read it from another perspective, it's actually pretty complimentary. Either way, it's being way overblown and misunderstood.

Special Counsel Hur’s Report on the investigation of Joe Biden’s retention of classified materials was just released yesterday to quite the cacophony of reactions. Every commentator from the professional pundits on the major news networks to popular social media influencers are taking opposite sides, but all inherently agreeing on one main point: Hur took a big political pot shot at Biden with comments about his age and penchant for forgetfulness.

Depending your point of view, this is either James Comey 2.0, referring to the former FBI Director Comey’s memo on reopening the Hillary Clinton investigation that he publicly summarized two weeks before the 2016 presidential election, which arguably lost her the election; or this is a federal prosecutor stating unequivocally that President Biden is too old and incompetent to stand trial. Either version is understandably concerning, if not rage-inducing, for their intended audiences.

Normally it would be logical to assume that the truth is somewhere in the middle. I don’t think that’s the case here. The truth is on another planet entirely in my view. One just needs to actually read the report, or at least the 15-page Executive Summary, to get a sense of the tone and intended takeaways for the public.

I admit when I read the articles summarizing the report (which most importantly emphasizes that Biden should not be prosecuted) I was also taken aback and shocked at what seemed like political interference in what should be a matter-of-fact description of reasons why a prosecution was declined.

But then I did something crazy: I actually read the report, or more accurately, the whole Executive Summary. And I walked away with confusion and frustration about the popular reactions.

Biden is being characterized as a normal, yet shrewd, human being

If you look at the sentence that is getting everyone excited and read between the lines just slightly, another picture is painted, one of a smart, lucid man, utilizing his best defense. Here is the quote in question, from Page 6 of the Executive Summary:

“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 “also” at the beginning of that sentence is referring to the lack of evidence already being an established feature of this investigation. So Hur already had to contend with that pesky aspect of his work. But then he, very reasonably, spends time and thought to how this would all be perceived by a jury at a trial, which should weigh heavily on any prosecutor serious about winning a case. Most prosecutors would only want to spend resources on a case they have a great chance of winning. Considering any angle or argument that could possibly lead to reasonable doubt for a jury would have to be foremost on their minds, alongside the evidence.

That quoted statement is referring to this question of the possibility of reasonable doubt by the jury. Hur is saying that one of the challenges for him to overcome reasonable doubt is that Biden has been, and would be, “present(-ing) himself.…as a well-meaning, elderly man with a poor memory.” He’s literally NOT saying that Biden is an “elderly man with a poor memory”, he’s saying he would present himself as one, and that he has been presenting himself that way “during our interview of him”.

Therefore, there are two significant things to consider and accept here, the first is that Biden knows that his best defense is to be a “sympathetic, well-meaning, elderly man with a poor memory.” It’s the same reason that older criminal defendants often come to trial in a wheelchair and an oxygen tank….to elicit the most sympathy from the jury as possible. Biden’s worst option was to make excuses for taking the documents, providing an elaborate legal argument for each one. He knows that he just needs to seem like a kind, gentle, if somewhat forgetful, old man who means well and simply made mistakes, and let the jury come up with reasonable doubt. The good news for him is that he’s a genuinely good person, and already comes off this way.

The second is Hur knows all of the above as well, and is smart enough to also know that, in Biden, he has a formidable adversary if he were to pursue this case further. He needs to prove beyond a reasonable doubt that Biden intended to willfully take these documents and hide them surreptitiously from the government. He spends a lot of time explaining in the summary why the available evidence would have too many counter arguments for reasonable doubt to seriously think this is a winning case to prosecute (actually a fascinating read, if you have the curiosity and time). And then he spends one infamous sentence on how the jury’s perception of Joe Biden is likely to also be favorable for reasonable doubt. If he was taking a swipe at Biden at all, it was to suggest some potential mischievousness on Biden’s part with attempts to avoid prosecution, not to make a political statement about his competency to stand trial.

Hur goes out of his way to compare why Trump’s case is different

Trump had the option to seem like an elderly, well-intentioned, and forgetful man in his document retention case, and reduce the likelihood of prosecution. But one problem with Trump, among many, is that his ego would never allow this, so the reactionary behavior was much different. As stated by Hur, Trump’s case presented “serious aggravating facts” that the Biden case did not. These aggravating facts were succinctly explained in one paragraph to be a complete lack of cooperation with returning the documents (according to the report, Trump “did the opposite” of what Biden did) when requested to do so, and subsequently obstructing justice.

Hur didn’t have to bring in Trump’s behavior or compare the two cases in any way. The fact that he did could actually also be considered inappropriate, as it is addressing an external political consideration (“why was Trump prosecuted and Biden was not”) as opposed to being focused on the facts solely of the Biden case. This could logically be considered a pot shot at Trump, as there’s really no reason to bring any of it up, other than politically.

Of course, you won’t hear Trump or MAGA bring this portion of the report up for that very reason. So relentlessly focusing the attention of news consumers on the description of Biden as elderly and forgetful is the only real strategy they can use for inducing any political damage to Biden. Unfortunately, Biden supporters have taken the bait on this, and are exacerbating the issue by giving it way too much weight. Accusations of political influence by Hur and calls for him to resign or be disbarred are misguided and irrational in the context of the whole report.

Garland had no option but to release the report as-is

One last thing to address is the commentary regarding Attorney General Garland’s lack of action on the report. There have been questions about why he wasn’t more willing to edit this portion of the report and take the “political” language out, or force a rewrite of that statement.

That would have created a mountain out of a molehill. As I’ve written above, the whole issue of political bias in this report is really a nothing-burger, and any neutral serious-minded reasoning person can see this if they read the report. Editing it would have created a whirlwind of controversy when none was necessary. If an edit was ordered, it either would have been done as an innocent matter of course in the preparation of the final report, and eventually reported on, which would have created a media frenzy about political bias by AG Garland, and therefore “Biden’s DOJ”.

Or it would have been done in a more secretive way, to avoid those perceptions. In which case, it most certainly would have leaked out, if not immediately then weeks or months later, which would have made the controversy 100 times worse, and had much more potential to affect the upcoming election.

By just releasing the report as-is, it avoids any meaningful substantive long-term controversy, and just causes a few days at most of headaches for Biden and his supporters. It stirs up the questions of Biden’s age and competence again, which were always going to come up anyway, because Biden is old and, like most older humans, makes mistakes when he speaks, and it’s easy for political influencers to compile a video of his gaffes. If all he’s dealing with now is having to defend his competency, as opposed to a legitimate potential scandal a Garland-mandated edit would have caused, then that’s the best overall damage control operation one could have hoped to be confronted with as a result of this report.