Democrats went to town in Hur hearing but Republicans missed a major moment

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On Tuesday, the House Judiciary Committee grilled former Special Counsel Robert Hur about his investigation and report into President Biden’s mishandling of classified information. 

As expected, both Republicans and Democrats using Hur and his report to score political points. Democrats tried to turn Tuesday’s hearing into a show trial directed at former President Donald Trump for hiding classified information at his Mar-a-Lago complex. Republicans questioned why Hur declined to bring charges when he found that Biden had been taking classified information home and to his personal office for decades.

But committee Republicans missed their big opportunity. Rather than focus on whether Hur should have indicted Biden, they should have focused on why Hur didn’t indict Biden. Famously, Hur wrote in his report last month that he declined to bring charges against the president because, in part, he was an “elderly man with a poor memory” with whom a jury might sympathize. 

FORMER SPECIAL COUNSEL ROBERT HUR TESTIFIES ON FINDINGS FROM BIDEN CLASSIFIED DOCUMENTS PROBE

For most Americans, the important issue is not whether Biden took classified documents home after the end of his vice presidency in 2017, but whether he is mentally fit to continue serving as president.  Indeed, under long-standing Justice Department precedent, federal prosecutors are forbidden from bringing criminal charges against a sitting president.

Tuesday’s hearings revealed Hur to be a straight-shooting prosecutor, much like the outstanding career officials at the Department of Justice with whom we have both worked.  Hur declared in his opening statement that he would “refrain from speculating or commenting on areas outside the scope of the investigation.”  He stuck to that throughout the whole hearing, repeatedly referring to his written February 2024 report and refusing attempts to get him to say something more damaging about either Biden or Trump.

Curiously, some congressional Democrats decided to attack Hur’s integrity even though he had declined to bring charges against the leader of their party.  Congressman Hank Johnson, D-Ga., accused Hur of launching an intentionally partisan attack: “You used your report to trash and smear President Biden … and you knew that would play into the Republicans’ narrative that the president is unfit for office because he’s senile.”  (Hur later stated that he did not find Biden to be senile nor did he use that word in his report.)  Johnson also baselessly accused Hur of being a Federalist Society member (he is not) and of “doing everything you can do to get President Trump reelected so that you can get appointed as a federal judge or perhaps to another position in the Department of Justice.”

Things went downhill from there. 

SCHIFF SPARS WITH HUR IN HEATED EXCHANGE OVER REPORT THAT ‘DISPARAGED’ BIDEN: ‘THAT DID NOT HAPPEN’

California Democrat Reps. Adam Schiff (who is currently running to replace the late Sen. Dianne Feinstein) and Eric Swalwell both attacked Hur. Swalwell claimed that Hur described Biden as having a “photographic memory” regarding his Wilmington home and asking Hur to pledge that he would not seek a role in a potential second Trump administration; Hur declined. 

For most Americans, the important issue is not whether Biden took classified documents home after the end of his vice presidency in 2017, but whether he is mentally fit to continue serving as president. 

Rep. Pramila Jayapal, D-Wash., falsely claimed that Hur’s report was a “complete exoneration of President Joe Biden” – Hur had to repeatedly state that he had not exonerated him.  Rep. Cori Bush, D-Mo., didn’t even bother to ask Hur any questions and instead gave a 5-minute speech that accused Trump of being the “white supremacist in chief.”

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Republicans made more progress.  Chairman Jim Jordan, R-Ohio, had Hur affirm his report’s finding that Biden earned $8 million from using the classified information to write his November 2017 book, “Promise Me, Dad.” Biden shared that information with his ghostwriter. Matt Gaetz , R-Fla., got Hur to agree that President Biden’s repeated claim that he “never shared” any of the classified documents was inaccurate.  Rep. Kevin Kiley, R-Calif., succeeded in persuading Hur to agree that a reasonable jury could have convicted Biden, and that Biden’s actions risked seriously damaging national security.   

But Republican members failed to mine the most important area for questioning.  While the Justice Department released the transcript of the interview, only Hur’s personal testimony could allow the American public to truly understand President Biden’s mental fitness.  Committee members did not require Hur to address, for example, Biden’s demeanor, alertness, memory, truthfulness, and overall mental state. 

Republican members did not strongly follow up on Hur’s conclusion, in his report, that Biden’s answers were sometimes “not credible.”  They could have asked Hur to explain exactly which of his observations and Biden’s answers led him to believe that a jury might not convict Biden, and whether the DOJ could rebut those arguments at trial. They could have asked Hur why he didn’t focus on the classified documents in Biden’s possession that were from his senate days; senators may not remove such documents nor any notes about them from the SCIF, and thus Biden knowingly and wrongfully removed and retained those classified documents.

The House Judiciary Committee members also could have delved deeper into the interview transcripts. The transcript confirmed that Biden couldn’t remember when he was vice president or when Trump was elected. 

It confirmed that Biden himself had brought up his son, Beau, and then incorrectly stating that 2017-2018 was the “timeframe” when “my son [Beau] is – either been deployed or is dying.”  Beau Biden was deployed in Iraq from 2008-2009 as a member of the Delaware National Guard, and tragically died of brain cancer on May 30, 2015. 

The transcript shows that President Biden answered Hur’s questions with “don’t know,” “don’t recall,” or “I have no god**mn idea” more than 100 times and couldn’t remember what a fax machine was. 

Was Biden angry? Obstructive? Did he honestly not remember or was he simply repeating a coached line when he was in trouble?  Was Biden’s tendency to wander off into nostalgic stories due to his age or mental decline, or was it evasive and/or obstructive?

Congress should seriously consider exploring these questions further. Chairman Jordan already has taken the next step by demanding that DOJ turn over all audio recordings and transcripts of the interviews. With Biden having essentially secured the Democratic Party nomination and Trump on the verge of securing the Republican one, the House Judiciary Committee owes it to the American public to reveal information on whether the incumbent is mentally fit for a second term in office.   

John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.

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