Editor’s note: Norman Eisen, who served as counsel to House Democrats during the first Trump impeachment, is a senior fellow at Brookings and a professor at the University of Minnesota Law School. Richard Painter was chief White House ethics lawyer under President George W. Bush from 2005-07. Joshua Kolb is an attorney and served as law clerk for the Senate Judiciary Committee. The views expressed in this commentary are their own. Read more opinion on CNN.
We agree with special counsel Robert Hur’s conclusion that President Joe Biden should not be prosecuted for retaining and sharing classified information, even if his handling of sensitive materials was far from exemplary.
But we take exception to comments in Hur’s report that gratuitously attack Biden’s age and memory beyond what is necessary in our view for a prosecutorial assessment. In what has already become the most quoted line in the report, Hur characterized Biden as “a sympathetic, well-meaning, elderly man with a poor memory.”
That statement and others like it contravene longstanding Justice Department principles about what prosecutors can and should say publicly when they decide not to bring charges. Hur showed terrible judgment in making these comments, which will only exacerbate the political firestorm around Biden’s age.
Indeed, the Justice Department’s Principles of Federal Prosecution state that “federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged parties” and that “prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged parties.”
The special counsel regulations governing Hur require him to comply with this fundamental principle. It is also captured in the American Bar Association’s standards of prosecution, which state, “The prosecutor may make a public statement explaining why criminal charges have been declined or dismissed but must take care not to … prejudice the interests of … subjects of an investigation.”
To be sure, this case is unique and complex. Biden is no ordinary individual, but the president of the United States. And as a special counsel, Hur is required by Justice Department regulations to write a report on his investigation explaining either the prosecution itself or the decision not to bring charges. So it was not possible for Hur to remain silent at the conclusion of his investigation.
Indeed, no one questions that Hur had an obligation to write this report and to explain the legal and factual reasons why, in his estimation, criminal charges should not be brought.
Like any other prosecutor, Hur had prosecutorial discretion and a responsibility to produce a sober and narrowly tailored report. He was free to discuss the handling of the documents and Biden’s memory with respect to those documents in evaluating the strength of a criminal case.
Hur clearly went beyond that and included his own opinions on Biden’s memory more generally, however. That ranged too far afield from the documents, and whether Biden did or did not commit a crime.
Although Attorney General Merrick Garland is the one who technically released the report, he had indicated he would do so in advance, so Hur should have been fully aware that the findings of his report would be revealed — and could have predicted the impact his words would have.
The portion of the document garnering the most attention in the media — referencing Biden’s age and mental powers — is particularly egregious. Hur’s free-floating characterization of Biden as an “elderly man with a poor memory” sheds little light on his charging decision.
It is certainly relevant for the special counsel to note the caliber of Biden’s memory about the documents in evaluating the strength of a criminal case. But many of the special counsel’s other comments about the president’s recollections during five hours of interviews were not relevant to the inquiry.
Perhaps most offensive was Hur’s observation that Biden did not remember when his son Beau died. That subject was well beyond the scope of the inquiry. And given the well-known impact Beau’s death had on Biden, its inclusion was needlessly personal and painful — as Biden’s heated reaction Thursday night demonstrated.
Hur’s justification for including this commentary on Biden — that these observations were a factor in considering Biden’s legal defenses — is also arguably misplaced. Speculating publicly about any 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 in our view. These defenses had nothing to do with evaluating whether Biden committed a crime. They were musings unrelated to the evidence in the case.
Moreover, the language Hur used crosses the boundary from descriptive to inappropriate editorializing. Instead of neutrally describing what Biden recalled, he used evocative language as he surmised whether a hypothetical jury would view him the same way. But as practicing attorneys, we know that it would be extremely unlikely for any criminal defense lawyer to put Biden on the stand. The chances of a jury being confronted with how he might appear to them under examination would be slim to none, so it is ludicrous to mention as a public-facing explanation for not prosecuting Biden.
We cannot know Hur’s intentions, but his comments can certainly be seen as an unnecessary shot at Biden, one that reinforces a prominent line of partisan political attack against the president. It is a bad look for both Hur and the Department of Justice.
It is reminiscent of another shameful episode in Justice Department history: FBI Director James Comey’s public comments in 2016 surrounding the investigation into then-Democratic presidential nominee Hillary Clinton’s private email server. As with Hur, 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 slammed Comey, concluding that his announcement was “inconsistent with Department policy and violated long-standing Department practice and protocol by, among other things, criticizing Clinton’s uncharged conduct.” (Comey’s conduct was probably more abhorrent than Hur’s: Not only did he opine on Clinton’s uncharged conduct, but he also “usurped the authority of the Attorney General,” according to the inspector general.
Hur did no such thing, following proper procedures in conducting his investigation and producing his report. But his deviation from the prosecutorial standard of not smearing the uncharged is troubling — especially coming during an election year — and should not be normalized.
Indeed, it may be appropriate for the inspector general to look at Hur’s conduct here and investigate whether there was a possible violation of the Hatch Act, which prohibits federal employees from using their official authority to interfere in an election. The Office of Special Counsel, which enforces the Hatch Act, may wish to look into this as well, as it did in the aftermath of Comey’s investigation of Clinton.
As things stand, the rules and regulations on special counsels are too vague and allow for potential abuse. Concerns about the ambit of independent prosecutors date back at least to Ken Starr and his prosecution of President Bill Clinton in the 1990s.
The regulations should be revised to remind special counsels about the principles of federal prosecution and to caution them to avoid disparaging language about uncharged parties that is unnecessary. That’s particularly important during an election season when such statements might affect political outcomes.
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