Special Counsel Robert Hur harmed President Joe Biden by explaining exactly why he did not charge him with any crime.  Hur’s report makes it clear that Biden could have been charged with “willful retention [and un-authorized sharing with the ghostwriter of his memoirs] of national security secrets.”  When Biden left office in January 2017, he took with him classified documents, mostly regarding Afghanistan.  He soon shared some of this material with the man ghostwriting his memoir.  Moreover, in a February 2017 session, he told the ghostwriter that he had “just found all the classified stuff downstairs.”  That is, in February 2017, Biden knew he had classified documents in his possession. 

On the one hand, there is a Justice Department policy against charging a sitting President.  So, Biden would have to be charged either after the 2024 presidential election (if he loses) or after the 2028 election (if he is re-elected). 

On the other hand, Hur described President Biden as a “well-meaning, elderly man with a poor memory.”  Hur’s report offered examples that are painful to read.  In October 2023 interviews with the Special Counsel’s team, Biden several times “did not remember when he was vice president.”  Nor could he recall when his son Beau had died.  As a result, Hur believed that “It would be difficult to convince a jury that they should convict him—by then a former president well into his 80s—of a serious felony that requires a mental state of willfulness.”[1] 

Fair enough.  A “well-meaning, elderly man” is how any fair-minded person now would describe Joe Biden.   Still, there are unanswered questions.  Biden’s mishandling of classified documents began in 2017, at the end of his second term as Vice President.  Is Hur arguing that Biden could plead “memory problems” for events as early as 2017?  Or is he only arguing that Biden would cut a pathetic figure if charged in 2025 or 2029? 

That is, when did Biden’s memory issues begin?  In a February 2017 session with his ghostwriter, Biden had difficulty “remember[ing] events.”  Were his issues already apparent during—at least—the later part of the Obama Administration?  Had they remained stable or progressed by January 2020, when he began his run for president?  Did friends and family members, and doctors have a sense of his limits?  Only they can answer those questions.  (Well, tell-all memoirs from Obama or Clinton officials might add something after the whole unfortunate Donld Trump matter is resolved.)[2] 

Would he have defeated Donald Trump in November 2020 if the American people had possessed a full knowledge of his state of mind?  More importantly, can he defeat Trump in November 2024 now that this information is available?  Polling doesn’t offer much help to the Biden camp.  Biden is trailing Trump in most polls.  One polls has shown that a Trump felony conviction would about even things out, no more.  Another poll reported that voters who see democracy as threatened are evenly divided in their support for Democrats and Republicans.[3] 

It’s an awful choice that American voters should not be forced to make. 

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[1] Michael D. Shear, “In Biden’s Exoneration, Political Hazard Emerges,” NYT, 9 February 2024. 

[2] Some presidents have hidden their medical problems from the public view: FDR wasn’t often photographed in his wheel chair; Kennedy concealed his Addison disease; Wilson’s entourage hid his totally disabling stroke.

[3] William Galston, “A State of the Union for the Middle Class,” WSJ, 7 February 2024