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OPINION: What’s wrong with the Biden “memory issues” report

OPINION: What’s wrong with the Biden “memory issues” report

Just as The New York Times observes in a separate analysis, Joe Biden won his single most important legal victory yesterday while also taking the most punishing political blow — a cheap one – with an utterly out-of-place sentence referencing memory issues and other irrelevant and yet powerfully specific descriptions of Biden’s garage.

In describing the President as a “well-meaning, elderly man with a poor memory” along with “diminished faculties in advancing age,” Special Counsel Robert Hur may have buried Biden’s political campaign – only time will tell.

But do not underestimate the impact the “published” finding will have. The emphasis is on “published” because Hur had to know the political ramifications of the blow.

I cannot overstate the degree to which Hur’s argument was meaningless as a legal finding, dirty, and purely political — none of it should have played a role in Hur’s decision, and likely none of it did. Even if it did, it should not have been published.

Donald Trump appointed Ben Hur U.S. Attorney for the District of Maryland, and Hur had retired from the DOJ when Merrick Garland called him out of retirement to investigate President Biden.

Garland made a good move in picking a Trump-appointed U.S. Attorney because the decision wouldn’t be questioned politically. Garland also had to know that whoever he appointed Special Counsel, that person would never prosecute Biden or Pence.

Donald Trump was given years to comply with the National Archives mandate — even a subpoena. And yet, he would not have been prosecuted even into the summer of 2023 had he given the documents back to the government before the search warrant was issued.

Instead, Trump was literally obstructing justice in a conspiracy to keep the documents, and that is surely the only reason that Smith charged Trump.

Hur needed only to point out that he didn’t have evidence of intent because when reminded, both Biden and former Vice-President Pence checked their records and allowed the DOJ and National Archives to access homes and offices. The fact that both sat for interviews is also critical to establishing a lack of intent to keep government documents from the beginning.

And so there were significant differences in how one prosecutes these cases based on the law itself, and there was no reason to go down the road of Biden’s inability to remember certain details — including the year his son Beau died. Biden, who did the interviews on October 8th and 9th (Right after witnessing the Israeli attack) was furious with Hur during the interview — and that will interfere with memory:

“How the hell dare he raise that. Every Memorial Day we hold a service remembering him attended by friends and family and the people who loved him. I don’t need anyone, I don’t need anyone to remind me when he passed away.”

Further below, there will be many examples of Trump and Trump supporters “forgetting” pretty obvious facts. But first, Biden’s response.

Biden’s White House lawyer and personal attorney sent a letter to Hur today. These are not campaign attorneys; this goes to a higher level. The letter stated that they “do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate.”

I don’t believe it is even relevant, making it recklessly or intentionally political.

Yes, Hur found that Biden “willfully” kept the documents in his garage in order to write a book. I want to be very fair in my treatment of Trump on this because I’ve speculated as to why Trump kept these documents (War plans on Iran?), and Trump’s rationale seems far more nefarious because he’s given no real reasons.

If Biden kept the documents to write his book — he likely took them willfully. But did he willfully violate the law, or did he believe he was essentially checking them out? The key is that as soon as the issue regarding classified documents was raised, Biden started a search of his home and ultimately worked with the DOJ and the National Archives.

Lest anyone doubt that the gratuitous slap about memory was political, one need only read a New York Times description of Biden’s biggest weakness. The political issue surrounding Biden’s age is so fraught with political danger that “President Harris” was trending on Twitter yesterday. And this, from the Times opinion piece:

“But the most searing political damage is likely to be about Mr. Biden’s age, which many veteran Democrats already believe is the president’s biggest weakness. Some have privately said they worried that something would come along to remind voters about the age issue, including the possibility of a fall or a mental stumble.”

And Hur seems to know it.

Mike Pence was investigated and cleared by the DOJ for forgetting the documents in his home — and surely made some factual slips during an intense interrogation. No one questions Pence’s mental fitness, only his policies. Pence, too, turned the documents over the moment they were found.

We don’t know with certainty whether Pence had any mental slips from his interview because Pence merely received a letter from the DOJ stating that he wouldn’t be prosecuted.

The DOJ didn’t produce some lengthy report on why it wouldn’t charge Pence. It merely sent Pence a letter stating that he would not be prosecuted. Hur could’ve done the same and yet he chose the opposite course. Presidents are not “well-meaning, elderly gentleman, with memory issues” — they are the most powerful people on earth and, as Biden noted, look at the legislation he got passed.

Additionally, so much attention was focused on Biden, not quickly knowing the year that his son Beau died, that the net exploded with examples of people losing their memory briefly. The first tweet applies to Kayleigh McEnany:

As easy as these are to find, they won’t be found by most Trump supporters because they will only hear about Hur’s findings on Biden’s memory — findings that conflicted with other areas of the report!

We could go on another 1,000 words, but the point has been made. The 400-page document, a document that could just as easily have been a ten-page letter with a sealed report to the DOJ (so as not to appear political), would have been sufficient.

To those who point to Donald Trump’s prosecution in the Mar-a-Lago classified files case as “political,” it has been accepted as dogma that Trump would not have been prosecuted, even for intentionally taking the documents and originally lying about them, had he simply turned them over.

Hur should be ashamed of himself.

But he likely took what was the most politically harmful step for Biden because of his own political leanings, whether he was urged to by outside influences or not.

Editor’s note: This is an opinion column that solely reflects the opinions of the author.

Jason Miciak
Jason Miciak is an associate editor and opinion writer for Occupy Democrats. He's a Canadian-American who grew up in the Pacific Northwest. He is a trained attorney, but for the last five years, he's devoted his time to writing political news and analysis. He enjoys life on the Gulf Coast as a single dad to a 15-year-old daughter. Hobbies include flower pots, cooking, and doing what his daughter tells him they're doing. Sign up to get all of my posts by email right here:

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