Under Partisan Fire, Hur Defends Report That Questions Biden’s Memory

Ricky Carioti/The Washington Post
A video of President Joe Biden plays as former special counsel Robert K. Hur, right, listens during a House Judiciary Committee hearing Tuesday on Capitol Hill.

Republicans and Democrats squeezed former special counsel Robert K. Hur for more than four hours Tuesday, trying to get him to either condemn President Biden as a crook, say former president Donald Trump’s treatment of classified documents was worse or admit his own purported failings in an investigation into whether the sitting president broke the law in handling classified papers.

None of it worked.

Under aggressive questioning by the House Judiciary Committee, Hur defended the 345-page report he issued last month, which found some evidence that Biden willfully retained classified government materials after he left the vice presidency in 2017 but concluded that there was not enough proof to justify criminal charges.

At the outset of the hearing, Hur insisted to skeptical Democrats that he did not “disparage the president unfairly” when he predicted that potential jurors would view Biden sympathetically, as a well-meaning but elderly person with a poor memory.

Republicans tried to get Hur to admit that he thought Biden was guilty even if he couldn’t file a case, which Hur resisted. Paradoxically, it was a Democratic lawmaker who drew out Hur’s most anti-Biden statement as the prosecutor explained that his duty was to determine if Biden should be charged, not whether he is innocent.

“I did not exonerate him,” Hur declared in response to questions from Rep. Pramila Jayapal (D-Wash.), who had just insisted his report did exactly that.

Hur’s mostly dry and precisely worded testimony revealed little new information beyond what was already in his report. It highlighted the stubbornly partisan way Democrats and Republicans have viewed the results of his year-long investigation as Biden and Trump seem poised to face each other in the 2024 presidential election.

Conservatives spent much of the hearing attempting to make lopsided comparisons between the Biden probe and special counsel Jack Smith’s separate investigation into Trump’s handling of documents – which resulted in 40 charges against the former president. Prosecutors allege that he retained classified materials after leaving the White House and thwarted officials’ attempts to retrieve them, and a federal judge is expected to rule any day on when that case will go to trial.

Democrats charged that the age and memory details in Hur’s report served only to impugn the reputation of a man prosecutors ultimately decided not to charge. When Hur said that those details were necessary to explain why he believed a jury would be unlikely to convict Biden at trial, Rep. Adam Schiff (D-Calif.) argued that Hur should have considered how his characterization would be received during an election year.

Hur defended himself and said special counsel regulations dictated that his report would be “confidential.” That’s technically true, but recent special counsel reports were quickly made public, and Attorney General Merrick Garland had vowed to make this one public as well long before Hur completed it.

“You made a choice. It was a political choice. It was the wrong choice,” Schiff told Hur in a fiery exchange.

The memory details – and Garland’s decision to make Hur’s full report public – have intensified a schism between the White House and the Justice Department over how each believes the law enforcement agency should operate during polarized times.

After the hearing, White House counsel spokesman Ian Sams told reporters that it is “time to move on.”

“I think the main thing to take away from today is two words for the American people: Case closed.” Sams said. “When a prosecutor spends 15 months investigating a case only to determine that there is no case here and that there will be no charges, and that the case is closed, it only affirms the innocence of the president.”

Each member of the Judiciary Committee had five minutes Tuesday to lodge questions with the former special counsel. The often-redundant and sometimes off-topic inquiries veered along party talking points, with the lawmakers attempting to coax splashy sound bites from Hur, a taciturn former prosecutor and top Justice Department official.

Democrats displayed a video montage of Trump forgetting basic facts in public. Republicans did the same with Biden, showing a montage of him stumbling over his words. And both parties took every opportunity to invoke the classified-document investigation into Trump.

Republicans said Trump getting charged while prosecutors recommended not charging Biden is proof of a rigged justice system. Democrats countered that the Trump and Biden cases are dramatically different. For one thing, unlike Trump, Biden is not alleged to have obstructed the investigation into him – a distinction that Hur noted in his report and reiterated at the hearing.

Rep. Russell Fry (R-S.C.) said the decision not to charge Biden was proof of “a two-tiered system of justice.” Hur refused to take that bait, sticking to his promise that he wouldn’t comment on anything that was not in his report.

“I’m not here to express any opinions about a pending case,” he said.

Hur – who recently resigned from his post as special counsel and testified as a private citizen – said multiple times that no one at the Justice Department, including Garland, attempted to interfere with the investigation or modify his findings before they were released.

The registered Republican and former Trump appointee bristled as lawmakers accused him of acting politically when writing the report and trying to position himself for an appointment should Trump be elected president again.

“I can tell you that partisan politics had no place whatsoever in my work. It had no place in it in the investigative steps that I took, it had no place in the decision that I made, and it had no place in a single word of my report,” Hur said.

Hur’s report portrayed Biden, 81, as someone who haphazardly kept notebooks and documents with classified information at his home after he left office and struggled to recall key dates in his life. The report contained photos of notes Biden took during his time as vice president, showing that he organized his notecards into binders so that he could take them with him after he left office.

Investigators determined that the former vice president shared some classified information with his ghostwriter as they were working on his second memoir.

But, as Hur explained at the hearing, in order to show a jury in court that Biden “willfully retained” the sensitive materials, Hur would need to prove beyond a reasonable doubt that Biden intended to break the law when he kept the materials. He concluded that there was not ample evidence to prove that. He said that Biden cooperated throughout the investigation, with the president consenting to searches of his properties and agreeing to sit for an hours-long interview over two days.

Hur is one of three special counsels Garland has appointed during his tenure. In November 2022, Garland tapped Smith to oversee the criminal probe of Trump’s possible mishandling of classified documents at his Florida home and private club, as well as a separate investigation into Trump’s efforts to block Biden’s 2020 election victory.

The classified-documents trial had been scheduled to start the week of May 20 in South Florida, but U.S. District Judge Aileen M. Cannon has agreed to a delay and is mulling a new trial date.

Smith charged Trump with four counts in the D.C. election obstruction case, which is on hold while the Supreme Court weighs Trump’s sweeping claim of presidential immunity.

In August 2023, Garland appointed David Weiss as special counsel to oversee an ongoing investigation into Biden’s son Hunter. Hunter Biden has since been charged in Delaware on gun charges and in Los Angeles on tax charges.