The Special Counsel Regulations Strike Again

Another special counsel has filed another report, setting off another round of accusations of partisanship. In this case, Special Counsel Robert Hur (whom I like and admire) determined that President Joe Biden should not be prosecuted for mishandling classified information. That is clearly the correct prosecutorial judgment.

Separately, Hur has been criticized for observations he included in his report disparaging President Biden’s memory and mental acuity—observations that Biden’s political opponents will weaponize. For reasons I explored previously, the special counsel regulations are flawed, and recent attorneys general have overly relied on the special counsel mechanism to the detriment of the institutional standing of the Department of Justice. Nonetheless, Hur had no choice here in one respect; a report was mandated. 

But what motivated Hur to include in his report observations about the president’s mental acuity?

Two points are worth noting. First, when a special counsel submits a report it is, by regulation, confidential. Second, a special counsel must explain his or her prosecutive decisions to the attorney general in the report. Once submitted, the decision to release the report to the public belongs wholly to the attorney general. The regulations are clear: “The Attorney General may determine that public release of these reports would be in the public interest.”   

Prosecutors operating in normal, non-special counsel circumstances routinely decline some of the cases they open. When they do—and I was a federal prosecutor for many years—they do not write reports about their investigations, comment publicly on the strength of the evidence, or comment on the relative strengths and weaknesses of their witnesses or of the defendant. 

But they certainly make those sorts of assessments and observations, internally and privately, during their investigations. Some of those assessments are sensitive (witness x is not credible, or witness y is an inveterate liar) and should not be shared publicly. But those sorts of assessments help prosecutors decide which cases are meritorious and should be charged, and which are not, and should be declined.

During his investigation, Hur and his team collected more than 7 million documents and spoke with 147 witnesses. They were trying to determine lots of things, including, most notably, whether any federal criminal statutes were violated and whether, if they charged those violations, they could establish their case to a unanimous jury with proof beyond a reasonable doubt. But Hur is required under the special counsel regulations to explain his declination in writing.  

If Hur was going to tell the attorney general that he declined to prosecute President Biden, then I believe he was also obligated to explain his rationale. The very nature of the decision to decline to prosecute includes Hur’s assessment of the putative defendant (Biden) and how Biden would fare at a criminal trial, including in front of a jury, if he chose to take the stand. Would Biden come across as forgetful? As sympathetic? As willful? As dissembling? As honest? These are crucial determinations prosecutors make all the time about witnesses and defendants. Indeed, I cannot imagine writing a report to the attorney general and not including these assessments.

I think it is unfair to Hur to leap to a conclusion that he intended to act as a partisan. It is an easy accusation to make and a difficult one to prove, and it would be at odds with the Rob Hur that I know. But I do think some criticism of the language Hur used is fair. Though he is obligated to write the report and include his assessments, and though the decision to release the report belongs to the attorney general, Hur must have known that his report would inevitably be released. The attorney general has long said that he is inclined to release such reports, to the extent the law permits. 

But a special counsel must write a report in a way—if possible—that gives no advantage or disadvantage to any one person, apart from the consequences that flow naturally from the factual findings of the report. It is one thing to explain in a neutral way why evidence exists—or does not exist—in a case (such as Biden could not recall) and another to use language that is arguably disparaging (such as that Biden is “an elderly man with a poor memory”). It is one thing to suggest that a defendant could come across to a jury as sympathetic and another to suggest that a defendant is utterly incapable of forming criminal intent. Political opponents will turn the latter characterizations into political capital. A special counsel report should avoid providing that sort of ammunition to either side (and I believe Hur could have threaded that needle here) while still adequately explaining a declination decision to the attorney general. 

There is much not to like about the special counsel regulations and this attorney general’s over-reliance on them. Turning to a special counsel is not the panacea the attorney general imagines it to be, and it does not insulate the process from accusations of partisanship. This latest special counsel report only further highlights that fact and those problems.  

By contrast, in June 2023, the investigation into the mishandling of classified information by former Vice President Mike Pence was closed without fanfare. The case was handled within normal channels, and no special counsel was appointed. A letter received by Pence’s attorneys from the Department of Justice simply noted that “[t]he Federal Bureau of Investigation and the Department’s National Security Division have conducted an investigation into the potential mishandling of classified information” and that “[b]ased on the results of that investigation, no criminal charges will be sought.” Simple, proper, and uninteresting, as it should be.

If you do not want to pour the fruits of sensitive investigations (with their attendant impressions and assessments) into the public domain, then handle these investigations through normal channels at the Department of Justice, and do what prosecutors always do when they decide not to charge a case: nothing.