On Tuesday, special counsel Robert Hur is scheduled to testify before the House Judiciary Committee, during which he will defend his observations about Joe Biden's memory as detailed in his final report on the investigation into Biden's mishandling of classified documents.
During Hur's opening statement, which National Review obtained an advance copy of, he will defend his decision to describe Biden's poor memory. Though the report technically absolved him legally, it was politically devastating for Biden because it exacerbated concerns about his advanced age and declining cognitive health, one of the key issues undermining his prospects for reelection.
Concerns about Biden's cognitive health continue to plague his presidency. Just this week, Joe Biden said that John McCain was his predecessor.
The report assessed that Biden's memory was "significantly limited, both during his recorded interviews with the ghostwriter in 2017 and in his interview with our office in 2023". It determined it wasn't worth bringing him to trial because 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." Thus, it would be "difficult to convince a jury that they should convict him [...] of a serious felony that requires a mental state of willfulness.” It also pointed out that he couldn’t remember the years he was vice president or when his son Beau died. Frankly, an indictment may have been politically preferable.
"My team and I conducted a thorough, independent investigation," Hur says in his opening statement. "We identified evidence that the President willfully retained classified materials after the end of his vice presidency, when he was a private citizen."
Hur will explain that the commentary was deemed necessary to explain why he did not advocate for charges against Biden for willfully retaining classified documents, despite establishing that the president knowingly retained such material.
Related: Attacking the Hur Report Won’t Fix the Democrats’ Problem
"My report reflects my best effort to explain why I declined to recommend charging President Biden. I analyzed the evidence as prosecutors routinely do: by assessing its strengths and weaknesses, including by anticipating the ways in which the President’s defense lawyers might poke holes in the government’s case if there were a trial and seek to persuade jurors that the government could not prove his guilt beyond a reasonable doubt," Hur says. "There has been a lot of attention paid to language in the report about the President’s memory, so let me say a few words about that. My task was to determine whether the President retained or disclosed national defense information 'willfully'—meaning, knowingly and with the intent to do something the law forbids."
Hur continued:
I could not make that determination without assessing the President’s state of mind. For that reason, I had to consider the President’s memory and overall mental state, and how a jury likely would perceive his memory and mental state in a criminal trial. These are the types of issues prosecutors analyze every day. And because these issues were important to my ultimate decision, I had to include a discussion of them in my report to the Attorney General.
The evidence and the President himself put his memory squarely at issue. We interviewed the President and asked him about his recorded statement, “I just found all the classified stuff downstairs.” He told us that he didn’t remember saying that to his ghostwriter. He also said he didn’t remember finding any classified material in his home after his vice presidency. And he didn’t remember anything about how classified documents about Afghanistan made their way into his garage.
My assessment in the report about the relevance of the President’s memory was necessary and accurate and fair. Most importantly, what I wrote is what I believe the evidence shows, and what I expect jurors would perceive and believe. I did not sanitize my explanation. Nor did I disparage the President unfairly. I explained to the Attorney General my decision and the reasons for it. That’s what I was required to do.
Joe Biden infamously decided to address the nation after the release of the report.
“How in the hell dare he raise that?” Biden said of Hur bringing up his son's death. “Frankly, when I was asked the question, I thought to myself, it wasn’t any of their damn business.”
However, the New York Times obtained a transcript of the interview, and it revealed that it was actually Biden who brought up Beau's death.
Democrats had hoped that Biden's performance at the State of the Union address would assuage concerns about Biden's health and memory issues. Though it's not yet clear whether it succeeded, between his more recent campaign appearances and this testimony, even if it did, I suspect Biden is back to square one.
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