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FEBRUARY 9, 2024
On the Prospect website
The lawyer who busted open Jeffrey Epstein’s sweetheart deal sues DOJ for the goods on Trump’s slimy deferred prosecution agreement with the 737 manufacturer. BY MAUREEN TKACIK
Durbin Must Enforce His SCOTUS Investigation Subpoenas
The Court’s own precedents show that its corruption scandals are exactly why Congress has subpoena power. BY MAX MORAN
Bayard Rustin—Out of the Shadows
A new movie, a new book, and an old nonviolent warrior now given his rightful recognition BY DAVID KIRP
My Very Own American Dictatorship
If I ruled the world … BY FRANCESCA FIORENTINI
Kuttner on TAP
A Partisan Hit Job on President Biden
Special Counsel Hur’s gratuitous digs at Biden’s age and memory
Special Counsel Robert Hur, in the course of explaining why he was not filing charges against President Biden for taking home some classified documents, wrote a 345-page report with gratuitous and nasty asides about Biden’s age and memory. It reads like something written by the Trump campaign as a hit job. You’d almost think Hur was a Republican operative.

Well, in fact Hur was Donald Trump’s appointee to serve as U.S. attorney for Maryland, a post he held from 2018 to 2021. Before that, Hur was principal associate deputy attorney general in the Trump Justice Department. He is a self-identified Republican.

So why did Attorney General Merrick Garland appoint a partisan Republican as special counsel to investigate President Biden, when dozens of other well-qualified people were available? Good question. Garland, once again, has proven to be Biden’s worst appointee.

Out of a colossally naïve sense of fairness, at a time when Republicans are out for blood, Garland also dithered for more than a year before appointing Special Counsel Jack Smith, in November 2022, to investigate Trump’s most flagrant and prosecutable breach of the law, his attempted coup of January 6, 2021, where all the evidence was in plain view. Garland acted reluctantly only after the House Select Committee on January 6th did all the investigative work and provided both the pressure and the road map.

Based on the facts, Hur should have written a short report pointing out that Biden’s actions did not rise to the level of criminal offenses. That, after all, was his conclusion and should have been the headline.

Instead, Hur delivered a book-length indictment of Biden’s age and memory, going out of his way to offer politically damaging and snarky assertions, and quotable one-liners. Explaining, disingenuously, why a jury would be unlikely to convict (a separate question from Hur’s own conclusion that Biden had not committed an indictable offense), Hur imagines that a jury would view Biden as “a sympathetic, well-meaning, elderly man with a poor memory.” But these are Hur’s own words; the jury is imaginary.

Hur can’t quite make these patronizing assertions himself, so he puts them in the mind of a jury of his own invention. You can just imagine Hur savoring the gimmick, the language, and relishing the political damage.
The timing was also suspicious. Hur picked a moment when Republicans were reeling from their divisions over border policy and Ukraine; their House and Senate leaders were losing the confidence of their respective caucuses; and the toadying to Trump had become its own embarrassment. The report put the spotlight back on Biden’s vulnerabilities and Democratic divisions.

This document, as planned, led to a media feeding frenzy. At a hastily called press conference, Biden expressed outrage that Hur would contend that he didn’t remember when his son Beau died, an assertion as implausible as it is deliberately insulting. On the whole, Biden did not do badly on his feet, except when he momentarily referred to Egyptian president Sisi as the president of Mexico. But Biden gave a good accounting of the complex Gaza diplomacy, and the Mexico slip pales compared with Trump’s prolonged confusion of Nikki Haley with Nancy Pelosi.

The only good thing about the report is that it was released in February, not as an October surprise. Republicans may be tempted to try to keep this going, maybe by calling Hur to testify. But be careful what you wish for.

Trump’s refusal to return classified documents, deliberately stashed at Mar-a-Lago and taken for reasons of vanity or possible monetary gain, is far more serious than Biden’s forgetting about a box of documents in his garage, material that he returned. And if we focus on comparative cognition, Biden wins.

The Hur affair continues a pattern of Democratic leaders naïvely appointing Republicans to sensitive criminal justice positions that Republicans exploit for partisan advantage. Hur’s report on Biden is an eerie echo of James Comey’s playbook that seriously, perhaps fatally, damaged presidential candidate Hillary Clinton.

In his statement of findings, released on July 5, 2016, then-FBI director Comey said he found no basis for a criminal referral in the case of Clinton’s handling of classified emails.

But then he rebuked Clinton, in an extended and gratuitous tongue-lashing, for being “extremely careless.” The exoneration was forgotten and the carelessness became the headline.

Comey, like Hur, was a partisan Republican, naïvely appointed by a Democrat (Barack Obama) who imagined that the gesture might be reciprocated. Now even more than back then, Democrats’ attempts at bipartisan comity, most recently on border legislation, blow up in their faces, especially with Republicans in thrall to Trump.

Moral: Do not take a peashooter to a knife fight. And do not appoint people like Merrick Garland.

And if that lesson comes too late because of Garland’s mishandling of the most sensitive matters of how to investigate presidential misconduct, Biden will have himself to blame. The rest of us will pay the price.
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