Episode Details

With the release of special counsel Robert Hur’s report on President Biden’s handling of classified documents, it appears we are once again facing a Hillary Clinton-James Comey moment. Where everyone was outraged that Clinton wouldn’t be held to account for blatantly violating the Espionage Act and then defying the Justice Department by destroying evidence on her private server, the American people should be doubly outraged at Hur’s conclusion not to recommend legal action against Biden.

Hur’s special counsel investigation “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” This is an incontrovertible violation of the Espionage Act and a crime that anyone else (but Clinton) would be charged for. Yet, it was announced that  the Justice Department will not charge Biden in the matter, Hur saying, “no criminal charges are warranted.”

So what was the basis for letting Biden skate on committing a crime that is not far from the seriousness of treason? As Hur put it in his announcement:

“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…Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify a reasonable doubt. It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”

Two immediate points come to mind.

First, unless Hur is a soothsayer or can see into the future; unless he is an omnipotent being, then he cannot know what a jury will think or do. Therefore, his contentions about the jury are all speculation and should not be considered in calculating whether or not the Justice Department should pursue any prosecution of Biden.

Second, unless Hur is a board-certified physician qualified to diagnose cognitive disorders, his opinion on the mental state of the President is irrelevant. In fact, his non-expert “testimony” – via his comments – complicates matters where the public and their elected representatives' consideration of the execution of the 25th Amendment is concerned.

Hur’s purview was – specifically – to determine whether or not a crime had occurred. His report – in conclusion of his investigation – determined a crime was committed. Therefore, Hur has to report that fact to his superiors and reserve his personal opinions for bravado sessions with his friends. His opinions on the matter are irrelevant. Only the facts uncovered are relevant.

So, for the second time in less than eight years, senior members of a presidential administration – who do not enjoy presidential immunity – are not charged with crimes that they did, in fact, commit. Where Biden was found to have illegally held classified documents, Clinton was found to have illegally held classified documents as well, Comey said in his final determination:

“Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of