What the Press Got Wrong on the Hur Report

Special Counsel Robert Hur is coming in for scrutiny from the press over his characterizations of President Biden’s memory. The special counsel’s report on Biden’s handling of classified information, released last month, characterized “significant limitations” in Biden’s memory during the president’s interview with Hur’s office. Those limitations, in Hur’s view, justified a decision to decline to prosecute the president, despite Hur’s unflattering depiction of the volume of classified information discovered at his Delaware home and at the Penn Biden Center, and Biden’s handling of it. Biden, Hur reasoned in his report, could be successful in presenting himself to a jury as “a sympathetic, well-meaning, elderly man with a poor memory.”  

But today, March 12, the full transcript of Hur’s interview with Biden was made public in advance of the special counsel’s testimony before the House Judiciary Committee. And as reporters noted, the Biden of the transcript looks quite different from the forgetful Biden described in the report. “Biden doesn’t come across as being as absent-minded as Hur has made him out to be,” wrote the Washington Post. Both the Post and the Wall Street Journal described the transcript as “more nuanced” than the report itself in terms of what it showed about Biden’s memory. 

Yet there’s an irony to the media’s criticisms of Hur in light of the transcript. Overstated though his report might have been, Hur’s interest in Biden’s age was no match for that of the mainstream press itself. 

Consider how the Times and the Washington Post covered the original report. “Special Counsel’s Report Puts Biden’s Age and Memory in the Spotlight,” blared the headline of a New York Times article, which described the Hur report as a “political disaster.” The Washington Post characterized the mood among Democrats as “hair on fire.” By one tally, the Times and the Post each published over 30 stories about Biden’s age and memory in the days following the release of Hur’s report. “IS BIDEN’S AGE NOW A BIGGER PROBLEM THAN TRUMP’S INDICTMENTS?” asked a CNN chyron two days after the release of Hur’s report. 

There are real questions about the apparent mismatches between what’s depicted in the transcript and Hur’s characterization of Biden’s mental acuity. In another sense, though, all this back-and-forth about the president’s memory—which appears to be fine—is a sideshow compared to the genuine issues of policy and presidential conduct depicted in the report itself. But it’s a sideshow on which the mainstream press has been only too happy to focus. 

Democrats and the White House have attacked Hur’s comments on Biden’s mental state as the conclusions of a partisan—Hur is a registered Republican who served in the Trump administration—out to get the president. Testifying before the House Judiciary Committee, Hur defended the decision to include that material in the report on the grounds that it was relevant to his evaluation of potential defenses that Biden might raise to any prosecution. Indeed, this is how the report frames Hur’s conclusions: 

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. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness.

Under the Justice Manual, prosecutors must consider the likelihood of a successful conviction when weighing whether to bring a case, so Hur isn’t wrong that this analysis is relevant in explaining his decision not to bring charges.

But reading the transcript alongside the relevant sections of the report, Hur’s comments on Biden’s memory often seem to go well beyond what the transcript conveys. Biden does ramble at points and make mistakes, but he also cracks jokes and seems sharp and aware. Consider perhaps Hur’s most striking comment in the report—that Biden “did not remember, even within several years, when his son Beau died.” The transcript shows Biden asking himself, “What month did Beau die?” before identifying the precise date, May 30. There is then a garbled exchange after which Biden agrees with an unidentified speaker that Beau Biden passed away in 2015. There’s some confusion among the different speakers, and it seems that Biden is thinking out loud, but from the transcript there’s nothing that indicates that the president has forgotten the relevant date. To take another example, the report states that Biden misremembered Ambassador Karl Eikenberry’s position on the 2009 Afghanistan surge. In the transcript, Biden does misstate Eikenberry’s view in a brief aside, but then correctly describes Eikenberry’s position at a later point in the interview. Yet the Hur report doesn’t note the correction. 

With this context, the press coverage of the interview transcript is welcome. But it also has a somewhat shamefaced quality, given that political reporters immediately focused on Hur’s comments about Biden’s age as soon as the report was out. The issue of Biden’s age has long been a fixation of journalists who cover national politics and are gearing up for the 2024 presidential race. (“Biden Should Take Voters’ Concerns About Age Seriously,” chided the Times editorial board in April 2023.) Those few lines in Hur’s report fit neatly into that pre-existing stream of news coverage, and were easily read as validation that reporters were onto something. But now that validation has proven to be not quite so straightforward.

This isn’t the first time that the mainstream press has been flummoxed by how to handle the release of a special counsel’s investigation into potential presidential criminality. Back in April 2019, as the nation waited with bated breath for the release of Special Counsel Robert Mueller’s report on Russian election interference and obstruction of justice, Benjamin Wittes and I published an article on Lawfare entitled “Memo to the Press: How Not to Screw Up on the Mueller Report.” Our argument was that the press had proven itself easily confused by Attorney General Bill Barr’s preliminary statements on Mueller’s findings, and that journalists would be well-served by approaching the report itself with a more measured eye and not allowing their coverage to be shaped by politically exciting but ultimately unimportant sideshows.

This time around, almost all the details are different. Compared to the Russia investigation, the scandal in question is of a far smaller magnitude. Hur, unlike Mueller, recommended against bringing charges against the president, whereas Mueller declined to decide whether Trump had violated the law. And there has been no misleading meddling by the sitting attorney general; indeed, in contrast to Bill Barr’s handling of the Mueller report, Merrick Garland made the Hur report public immediately and in its entirety—and without public comment on its substance.

But the press doesn’t seem to have learned much. In an echo of the confusion around the release of the Mueller report, this journalistic insistence on focusing on Biden’s age as the main story elides the genuine, serious issues raised by the report that deserve closer examination. 

As Matt Gluck and Benjamin Wittes have written, the sheer volume of classified material apparently stored at Biden’s home—roughly 75 classified documents, in addition to over 100 pages of classified material within Biden’s personal notebooks from his time as vice president—is hefty, and does not fill one with confidence about Biden’s respect for the security concerns at issue with handling of sensitive information. (Bob Bauer, who is counsel to Biden, responded to Gluck and Wittes here.) To be clear, there is no reason to doubt Hur’s conclusion that Biden’s conduct did not merit prosecution, and this case is orders of magnitude less concerning than Trump’s hoarding of classified documents at Mar-a-Lago and subsequent refusal to return them—hence the distinction between the handling of the two cases. But Biden’s conduct as described in the report is not good form, either. 

In addition to the matter of the president’s personal probity, Hur’s investigation makes clear that the existing system for handling classified material after presidents and vice presidents leave office is not working. Part of the problem has to do with how to make sure that sensitive documents aren’t inadvertently packed away as these officials empty out their desks—a problem that plagued Vice President Mike Pence, too, albeit on a much smaller scale. There is also genuine uncertainty as to the legal status of personal notebooks like Biden’s that contain classified information. Are these “personal records,” which former presidents and vice presidents may keep? (Bauer sets out this view in his response to Gluck and Wittes.) Or must they be kept in government custody? Whatever the answer is, it seems obvious that there should be clear guidance here so that the country doesn’t keep running into this problem. 

And, finally, there’s the special counsel system itself. The chaos of the Hur report underlines the preexisting failures of the system, many of which were already on display during the Mueller investigation. 

The relevant Justice Department regulations represent an attempt to balance the independence of the investigators with adequate oversight, so the special counsel won’t be overly cramped by a politically conflicted attorney general but also won’t run wild, as Independent Counsels Kenneth Starr and Lawrence Walsh were both criticized for doing under the previous legal regime. The special counsel is charged with drafting a final report to be delivered to the attorney general, which the attorney general may then decide to deliver to the public. This means that the special counsel is nominally writing for internal Justice Department consumption but is functionally writing for the country as a whole. 

Following the Mueller investigation, this created a strange situation where Barr was able to release his own, highly misleading takeaways from Mueller’s report while delaying the publication of the report itself and thus giving Trump a head start in the press. When the report itself was released, it became apparent that Mueller had bent over backward in order to frame his conclusions as carefully and neutrally as possible for a public audience. Hur had the opposite problem: his harsh language about Biden’s memory might have been more appropriate if it were to remain inside the walls of the Justice Department, like a typical prosecution memo. That doesn’t mean that he was right to include such language, but it does underline the difficult balancing act that any special counsel must attempt. 

Further strangenesses stem from the unique legal position of the president in the constitutional structure. How should a special counsel address the Office of Legal Counsel’s conclusion that a president may not be prosecuted while in office? Mueller bent himself into pretzels to avoid saying that Trump’s conduct merited prosecution, instead announcing that his office “determined not to make a traditional prosecutorial judgment.” He later told Congress that the OLC memo precluded him from even considering prosecution as an option, saying that “charging the president with a crime was therefore not an option we could consider.” But he also said that if his investigation had concluded that Trump had not committed a crime, the report would have said so. Hur, in straightforwardly declining prosecution, had an easier job—he didn’t need to parse the distinction between concluding that a crime had occurred and being able to prosecute it. But he chooses to address what a prosecution would look like anyway, considering how Biden would appear before a jury, though he seems to assume that it would have to take place after Biden leaves office. Is this an appropriate way for a special counsel to navigate such a situation? What does all this confusion say about what it means to have a political system where the president is regularly under criminal investigation?

All this is to say that there is a lot more going on with the Hur report than comments about the president’s age and memory, and taking the report seriously doesn’t require focusing on those comments. Whether you believe that Hur is a partisan hack or a straight shooter, the press bears its own responsibility for zeroing in on the portion of his work about Biden’s age.