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Why Special Counsel Robert Hur Cited Biden's Mental Lapses in Classified Doc Report

AP Photo/Evan Vucci

While some have not taken this route in defending Joe Biden, the Biden White House and some legal observers on liberal news networks have taken this position: it was inappropriate for Special Counsel Robert Hur to mention the president’s spotty memory and age during his deposition. Biden was the subject of a federal investigation concerning mishandling classified materials. While Hur opted not to charge Biden, the damage was done: the main concern about Biden—his mental health—got injected with steroids. Almost three-quarters of the country doesn’t want Biden to run again and think he’s too old. The White House presser Biden held last night only reinforced those data sets. Yet, Andrew McCarthy, a National Review editor, decided to defend Hur and his inclusion of Biden’s memory lapses for a simple reason: it was required. McCarthy added the report might have provided cause to invoke the 25th Amendment.  


On the memory observations, which included a particularly damning passage about Joe forgetting when Beau Biden died, McCarthy, a former assistant US attorney, said that Democrats were shooting the messenger. Hur was required to include the mental health aspects of the investigation. He’s responsible for relaying any litigation issues that could come up at trial to Attorney General Merrick Garland. If anything, McCarthy says Democrats should be directing their fire at Garland (via NRO): 

Hur was required by regulation to explain his rationale for charging decisions in a “confidential report.” (See Rule 600.8[c] of the Special Counsel Regs, Title 28, Code of Federal Regulations.) It is then up to the attorney general to decide whether to release all or part of the report to the public. (See Rule 600.9[c].) 

Understand: Prosecutorial deliberations over whether to charge people nearly always cast a suspect in a bad light, even if the decision to decline prosecution is made. That is especially the case when the evidence of a crime is strong and the prosecutors must rationalize that other factors — especially, disabilities and the likely impact of them on a jury — justify leniency. 


There is absolutely nothing inappropriate in Hur’s consideration of how Biden’s mental decline would play in a jury trial. Moreover, the special counsel’s job is to make the AG aware of significant litigation issues that might arise if the decision to indict were made. One such issue might be a claim that Biden is unfit to stand trial and meaningfully assist in his own defense — even if, at the time of the criminal acts outlined in the report, his mental faculties were markedly better than they are now. 


If Democrats want to be angry at someone, be angry at Attorney General Merrick Garland. The regs make the report confidential, but Garland is the one who decided to release it publicly. You can argue that, politically, he had no choice. But the truth of it is that he did have a choice. The one who didn’t have a choice is Hur.


McCarthy also included how disclosures have changed since the 1970s. The public was never “privy” to the deliberations. If nothing came of an investigation, prosecutors closed the file and moved on to other matters. Being hurled to the wolves in the court of public opinion seems rudimentary now. Still, McCarthy added that it’s not standard for law enforcement to “publicly discuss the evidence against uncharged persons, as well as the personal information about them that factors into charging decisions.” 

He added, “If the government does not formally charge a crime, then the prosecutors are not supposed to sully the suspect in the court of public opinion, where the suspect lacks the forum and often the means to mount a defense.” Yet, it’s now normal for the “confidential report” to be released. McCarthy observed that maybe such methods are necessary since these probes are the ones that have held overreaching executive branches in check.  

While McCarthy explained why Hur would have been derelict not to include the state of Biden’s mental health to Mr. Garland, he also explored whether the report provided grounds to invoke the 25th Amendment. He thinks that it does:


So, as Rebecca noted this morning, this post about Kamala is certainly more interesting. It also might be the only time the vice president would agree with a right-of-center publication. 

Also, lord save us:

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