Why was it so funny? Well, let’s put it this way: Hur’s reasons for not prosecuting Biden are arguably more politically damaging than a potential prosecution itself. Scratch that, they are definitely more politically damaging, because – as Hur correctly suspects – Biden would likely walk free, even if he were not safe from prosecution as president, given the fact that the case would be tried before a DC jury, who would have every reason to find Biden innocent. Therefore, in a hypothetical trial of President Biden, that “not guilty” verdict would be seen by DC’s political class as an unquestioned win for him. Whereas now, when the prosecutor himself has thrown up his hands in disgust and explained all of the (embarrassing) reasons why Biden’s defense would be so easy to construct in a legal court, even as that defense could ruin him in the court of public opinion, we cannot help but laugh.
Why? Because the essence of Hur’s reasoning, which is explained fairly quickly in the document’s introductory remarks, is that the reason Biden couldn’t be convicted in a court of law is that he’s clearly too senile to be a reliable witness to his own conduct, and anyway, even a former vice president might reasonably be confused about what the law is when it comes to retaining classified information. No, seriously, when explaining how a jury could discount a statement Biden made to his ghostwriter that he found “all the classified stuff downstairs,” Hur writes:
“In addition, Mr. Biden’s memory was significantly limited both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023[…] Given Mr. Biden’s limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance to his ghostwriter about finding classified documents in Virginia in the absence of other, more direct evidence.”
In other words, to summarize Hur’s report to that point, Biden’s likely defense would be that he moved classified documents into his garage while he was still Vice President, and then was so senile when he left office that he forgot all about it. This defense would be risible from a more obviously competent man, but Hur clearly believes that if Biden were actually to be put on the stand, the jury would have to believe he was just this much of a doddering old fool. Again, quote:
“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 reasonable doubt.”
Translated in a less diplomatic way, this clearly means that under sustained questioning, Biden would come off as…well, “Sleepy Joe,” as President Trump might put it. Now ask yourself this: if a man can’t even handle questioning from a lawyer about his own behavior, how are we supposed to believe he’s actually executing the office of President of the United States? The plain words of Hur’s report indirectly confirm every single theory that conservatives have posited about Biden’s status as a mentally defective puppet for his woke, globalist staff.
It only gets worse from there, as Hur admits that Biden also likely kept notebooks and notecards full of classified information – which also makes Biden look terrible -- only to go on and admit that actually, this, too, is fairly common among presidents and vice presidents, despite its being technically illegal (Hur cites Ronald Reagan’s diaries as an example). Which, naturally enough, might make you wonder: if this is such a common way that former presidents and vice presidents bend the law, then why is President Trump on trial? And Hur, bless him, anticipates this:
“With one exception, there is no record of the Department of Justice prosecuting a former president or vice president for mishandling classified documents from his own administration. The exception is former President Trump.”
And then, after unconvincingly demurring that he didn’t assess the charges against President Trump because it wasn’t his job, Hur gives only two reasons why President Trump’s case is different from Biden’s. Hur’s first reason is because Trump is accused of not returning the classified information when asked, which is all well and good, but if people who’ve held the office of president so often keep such information, then one has to ask why President Trump was asked to return them in the first place. Further, if the real problem is that President Trump can’t claim mental incompetence as an extenuating circumstance, but Biden can, then what sense does it make to prosecute someone for the crime of not becoming senile in time to avoid accountability? It doesn’t.
But it’s the second reason Hur gives where his report descends into naked cynicism. “In reaching our decision, we did not consider every circumstance in which criminal charges against a former president or vice president for mishandling classified information may be warranted. But on the facts of this case, ‘the fundamental interests of society’ do not ‘require’ criminal charges against Mr. Biden.”
By implication, therefore, since Hur does not dissent from the charges against President Trump, one must conclude that according to his report, the “fundamental interests of society” do require a trial of President Trump. Or, at least, that a jury could be convinced that it does.
And here, we have to admit, Hur is actually being honest not in a funny way but in a depressingly frank way. Because once you read that line, you understand the rest of the document through entirely new eyes: That is to say, Hur’s essential argument when it comes to senility is not so much that Biden is a doddering old fool, as that a jury would believe he is.
Similarly, Hur clearly does not think Biden (and Reagan, for that matter) did nothing wrong. It’s just that a jury would believe that Reagan’s precedent excuses Biden’s. In other words, if you’re a prosecutor concerned with winning cases, Hur is not saying so much that Biden isn’t guilty as that no jury will convict him.
And can we honestly say he’s wrong? No, quite the opposite. Given that if Biden were charged for his crimes, he would likely be tried before a DC jury, this is almost certainly correct: a DC jury would likely exonerate a Democratic president even for shooting someone in the middle of Farragut Square.
But just as a DC jury would exonerate Biden no matter what, Hur is also correct that, if a prosecutor did want to convict a president for mishandling classified information, there is no easier target for a DC jury to convict than President Trump. In the eyes of a DC jury, in fact, President Trump’s prosecution would serve “the fundamental interests of society.” Therefore, reading between the lines, the real reason why Hur suggests against prosecuting Biden while excusing the persecution of Trump is simply that a prosecutor can win one case and not the other. There is no matter of legal principle involved – Biden is just as guilty as Trump. They’re coming after Trump – and his supporters -- not because the law requires it, but simply because they can. Because to a DC jury, conservatives and threats to the Swamp’s gravy train have no rights which the constitution is bound to respect.
Robert Hur may be a coward. He may be a toady. He may be cynical. But say this for him, he’s not lying and he’s not wrong. Like every other lawyer, he was forced to draft his report in the context of America’s current two-tiered justice system. And unfortunately, that two-tiered justice system is not a problem that can be solved in the courtroom alone. It must be solved at the ballot box.