President Biden’s top attorneys exchanged confrontational letters with top Justice Department officials before and after last week’s explosive report from special counsel Robert K. Hur, contending that Hur’s comments “openly, obviously, and blatantly violate Department policy and practice.”
Biden’s lawyers angrily protested Hur report before its release
by themoneyoffice2.com@gmail.com February 15, 2024 · Politics
Among other things, Biden’s lawyers argued that Hur had no reason to assemble a 388-page report in the first place. Justice Department regulations dictate that if no charges are filed, the special counsel should send a confidential report to the attorney general explaining that decision.
The letters highlight the conflict that has erupted between the president’s team and Attorney General Merrick Garland, who is now accused by Biden’s attorneys of breaking the department’s norms after being appointed to reestablish them following the Trump presidency.
Garland did not respond directly to Biden’s legal team. Instead, Associate Deputy Attorney General Bradley Weinsheimer, the Justice Department’s senior career official, wrote back supporting the document’s wording.
“The identified language is neither gratuitous nor unduly prejudicial because it is not offered to criticize or demean the President,” Weinsheimer wrote to Biden’s legal team. “Rather, it is offered to explain Special Counsel Hur’s conclusions about the President’s state of mind in possessing and retaining classified information.”
Under the department’s regulations, Garland would have had to notify Congress if he made changes to the report.
The White House Counsel’s Office and Biden’s personal lawyer, Bob Bauer, initially raised their objections in letters to Hur. Ultimately, they sent a scathing letter directly to Garland, who oversees the Justice Department and is one of Biden’s highest-profile Cabinet nominations.
That letter — a last-ditch appeal sent Feb. 7, the day before Hur’s report was released to the public — was especially impassioned, suggesting that the special counsel was making the same mistake that FBI Director James B. Comey did in 2016, when he sharply criticized Democratic presidential nominee Hillary Clinton in the course of announcing that she would face no criminal charges.
“Mr. Hur’s criticism of President Biden mirrors one of the most widely recognized examples in recent history of inappropriate prosecutor criticism of uncharged conduct,” Biden’s lawyers wrote. “The FBI and DOJ personnel’s criticism of uncharged conduct during investigations in connection with the 2016 election was found to violate ‘long-standing Department practice and protocol.’”
That election resulted in the presidency of Donald Trump, who is now seeking to recapture the White House.
Hur is expected to testify before the House Judiciary Committee on March 12, possibly his first public appearance after releasing the report, and he may face some of the same questions raised by Biden’s attorneys.
In its letter to Garland, Biden’s team objects strongly to Hur’s use of the president’s inability to recall specific dates to reach the sweeping conclusion that his memory was “significantly limited.” Hur cited that conclusion in explaining that he was not prosecuting Biden for mishandling classified documents in part because a jury would probably find him an appealing, if forgetful, senior citizen.
“We object to the multiple denigrating statements about President Biden’s memory which violate longstanding DOJ practice and policy,” the lawyers wrote to the attorney general. While the special counsel is entitled to note that Biden could not remember specific facts, they added, “a global and pejorative judgment on the President’s powers of recollection in general is uncalled for and unfounded.”
If you’re unable to read the full text, the full pdf is available here.
But Biden’s lawyers complained that the report repeatedly cited the president’s memory in a derisive fashion, even though Hur’s interaction with Biden was limited to a five-hour interview in which he encouraged the president to do his best to recall events from years ago.
The lawyers also protested that Hur’s report did not point out that his questioning of Biden took place the day after the Oct. 7 attacks in Israel, when Hamas militants surged across the Gaza border and slaughtered some 1,200 Israelis, igniting a conflagration in the Middle East.
If you’re unable to read the full text, the full pdf is available here.
Bauer and White House counsel Edward Siskel, who jointly wrote the letter to Garland, did not only complain about Hur’s depiction of Biden’s memory. They also voiced frustration at a part of the special counsel’s report focusing on personal notes that Biden took — and kept with him upon leaving the vice presidency — related to classified information.
Hur had pointedly quoted a statement by Biden that Trump was “totally irresponsible” for keeping top secret documents at his Mar-a-Lago estate in Palm Beach, Fla. “Mr. Biden’s emphatic and unqualified conclusion that keeping marked classified documents unsecured in one’s home is ‘totally irresponsible’ because it ‘may compromise sources and methods’ applies equally to his own decision to keep his notebooks at home in unlocked and unauthorized containers,” Hur wrote.
Biden’s attorneys objected to that statement, saying the practice of keeping personal diaries was in line with former presidents and vice presidents — and nothing like Trump’s willful retention of sensitive documents and alleged refusal to return them.
“To criticize President Biden for a practice that his predecessors openly engaged in, a practice that the Justice Department has in the past acknowledged and declined to investigate, a practice that is not charged conduct, exemplifies the reasons why a bipartisan consensus arose to change the prior report writing function,” they wrote.
That referred to one of the biggest points of contention between Biden’s circle and the special counsel’s team — whether it was appropriate for Hur to write a lengthy report repeatedly criticizing Biden when he had concluded that no criminal charges were merited.
Biden’s lawyers note that Congress decided in 1999 not to renew the independent counsel statute, a controversial post-Watergate law, amid widespread criticism of its requirement that independent prosecutors produce exhaustive final reports. Those reports often enumerated an individual’s alleged wrongdoing without any need to prove it in court.
Still, Hur is hardly alone; special counsels have continued to issue lengthy reports in the past two decades when charges were not filed. Among the best known is special counsel Robert S. Mueller III’s report in 2019 that examined whether the Trump or his aides colluded with Russia or obstructed justice.
Before Biden’s legal team contacted Garland, it lodged several complaints with Hur’s office. It wrote to the attorney general, on the eve of the report’s release, after becoming frustrated that Hur’s office was not heeding its complaints.
While the special counsel is not subject to the day-to-day supervision of Garland or other department officials, the attorney general can ask the special counsel to explain certain steps he is taking. If the attorney general then orders him to change course, the special counsel has to notify Congress.
In their letters to Hur, Biden’s lawyers sought the opportunity to review and comment on a draft of his report. They argued that lengthy, detailed public reports can cause serious harm to their subjects even if they do not result in criminal charges.
“We do wish to underscore how important it is under these circumstances to allow the President’s lawyers the opportunity to review a draft of your report to address potential inaccuracies or unfair characterizations and conclusions,” White House special counsel Richard Sauber wrote in an Oct. 31 letter.
He added: “Given that the President, through counsel, has no opportunity to test any of the evidence discussed in the report, the President’s lawyers should have a meaningful opportunity to review and provide comment on the report before it becomes public.”
Once Biden’s lawyers did receive the report, they had vigorous objections.
Treating the handling of personal notes on classified information as a potential crime, they wrote at one point, “runs the substantial risk of causing irreparable harm to the Offices of the President and Vice President by deterring future Presidents and Vice Presidents from using diaries and notes in the context of the most stressful and important jobs in the world — jobs that also require nearly continuous interaction with sensitive national security information.”
But it is the back-and-forth over Biden’s memory that stands out.
Weinsheimer, the Justice Department official, said in his letter that Hur’s report provided “significant detail” on why he decided not to prosecute, including his conclusions on whether Biden acted “willfully” in possessing classified information.
“The language to which you object goes directly to these issues,” Weinsheimer wrote, adding: “For these reasons, inclusion of the identified language in the report and the report itself fall well within the Department’s standards for public release.”
Weinsheimer called the comparison between Hur and Comey “inapt” in part because they held different government positions with different powers. “Special Counsel Hur’s report is readily distinguishable from Director Comey’s press conference,” he asserted.
When the report was released later that day, it kicked up an enormous political storm. Republicans criticized Hur for not prosecuting Biden, and they eagerly seized on the depiction of the president as an elderly man with a diminished mental capacity.
Following several days of furor — during which Republicans called for Biden to step aside and Democrats attested to Biden’s sharpness and pointed to Trump’s own frequently confusing language — Sauber and Bauer fired off one more letter to the Justice Department on Monday.
They dismissed the argument that Hur’s role was nothing like Comey’s. That assertion, they said, “reflects a disturbing lack of concern about the harm that the policy seeks to avoid. An uncharged person, in this case the President of the United States, cares not about the particular title or role of the Department official who publicly excoriates him with critical comments about uncharged conduct. The unfairness is equally profound.”
Overall, they added, “we fundamentally disagree with your assessment that the comments contained in Special Counsel Hur’s report were consistent with Department policy and practice. They surely were not.”
If you’re unable to read the full text, the full pdf is available here.
