WASHINGTON – The release of a harshly critical Justice Department special counsel report on President Joe Biden has triggered instant flashbacks to history-shaping events of 2016. That's when FBI Director James Comey castigated Democratic nominee Hillary Clinton over her email practices despite recommending against charges.
In this year's already heated election season, the Justice Department cleared Democrat Biden, too, of criminal wrongdoing but painted a politically damaging picture of his handling of classified information.
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Both announcements were derided by Democrats for their potential to unduly shape public perception in an election year — and for the inclusion of what they saw as gratuitous swipes at their candidates. In particular, Hur's detailed discussion of apparent memory lapses by Biden revived a long-running debate within legal circles about how much derogatory information is appropriate to place in the public realm about individuals like Biden and Clinton who are investigated but not charged.
“I think what we saw was a special counsel who was trying to be as complete as possible and trying to be as transparent as possible with the public about every aspect of the investigation,” Robert Mintz, a former federal prosecutor, said of the Hur report.
“But ultimately," he added, "some of these observations were more subjective than objective, and I think it’s fair for individuals to question whether or not some of the phrasing that was put in the report was entirely necessary.”
To be sure, there are significant differences between the Clinton and Biden investigations, including that the Biden probe concluded a full nine months before this year's election while a final statement from Comey on Clinton came just two days before voters went to the polls in 2016.
As FBI director, Comey broke from the norm by delivering a detailed public statement marking the conclusion of the Clinton email investigation, even though such announcements — to the extent they're made at all — normally would come from the Justice Department.
Hur, by contrast, was fulfilling his duties under Justice Department regulations by drafting a report that was presumably meant for public consumption. Such reports, like special counsel Robert Mueller's 2019 one about President Donald Trump and Russia, often include unflattering narratives about people who were not charged with a crime.
Justice Department regulations mandate that special counsels produce their reports, confidentially, to the attorney general. But they don't dictate what should be in those reports, said former Deputy Attorney General Rod Rosenstein, who appointed Mueller and was once Hur's boss.
“The policy is about what you release to the public,” Rosenstein said in an email, adding that the authority to release the memo rested solely with Attorney General Merrick Garland.
In both the Biden and Clinton cases, the language used to characterize the subjects has been as closely scrutinized — and criticized — as the decision not to prosecute.
Comey, in a July 2016 announcement at FBI headquarters, pointedly referred to Clinton as “extremely careless” in her handling of classified information on a private email server she used as secretary of state — even as he detailed all the reasons she shouldn't be prosecuted.
Hur said he would not have charged Biden, even independent of a Justice Department legal opinion that says sitting presidents cannot be indicted. But one particular prong of his reasoning for not prosecuting was especially notable — the potential that the president would come across to a jury as a “sympathetic, well-meaning, elderly man with a poor memory." During an interview with Hur's office, the report said, Biden could not immediately recall the dates of his vice presidency or what year his son Beau died.
Those comments prompted fierce pushback from Biden himself, who in a White House news conference grew visibly angry as he denied not knowing when his son had died. Insisting his memory was fine, he said of Hur's reference to Beau Biden: “How in the hell dare he raise that?”
Anticipating the explosive nature of the memory claims, the president's attorneys wrote Hur before the report was released to complain about the inclusion of what they said was "highly prejudicial' commentary.
“Such comments have no place in a Department of Justice report, particularly one that in the first paragraph announces that no criminal charges are ‘warranted’ and that ‘the evidence does not establish Mr. Biden’s guilt,’” wrote Richard Sauber, special counsel to the president, and Bob Bauer, Biden's personal lawyer.
As with Comey's statement on Clinton, the report was delivered not only in an election year but in a bitterly polarized political climate. The FBI closed its investigation in July 2016 but reopened it less than two weeks before Election Day after potential new evidence was discovered. Comey cleared Clinton anew two days before the election, but in a final jolt blamed by Democrats for contributing to her loss.
Though this year's election is nine months away, discussion of Biden's memory cuts to the core of deep-seated voter concerns about his age approaching the November contest.
“The prosecutor would absolutely be aware of the context in which he is publicizing these types of gratuitous and unnecessary remarks,” said former Justice Department prosecutor Christopher Mattei. “And just looking at the reaction that they’ve gotten, it’s quite clear, and totally predictable, that these types of remarks would have political ramifications, even during a primary season.”
Hur's selection as special counsel in January 2023 was clearly meant to show a nonpartisan approach by Garland. Hur had held senior leadership roles in the Trump Justice Department, both in Washington and as U.S. attorney for Maryland, and as a younger lawyer clerked for William Rehnquist, the conservative Supreme Court chief justice.
Garland, meanwhile, has worked assiduously for the last three years to combat Republican claims of a politicized Justice Department by repeatedly taking steps designed to prove that he is not catering to the interests of Biden or his family. That includes the appointment of a different special counsel to investigate Biden's son, Hunter, who is now facing federal tax and gun charges in two states.
Yet once the report was released, Democrats and some former Justice Department officials appeared taken aback by the report's findings. Some openly undermine his findings.
A Justice Department spokeswoman declined to comment.
Like Comey, Hur's job was never going to be easy — especially not when a different special counsel, Jack Smith, already charged Trump with hoarding classified documents at his Mar-a-Lago estate. It fell to Hur to illuminate in his report the differences in the fact patterns and legal analyses that led to one 2024 candidate facing charges and the other not.
“I think part of the drama that’s associated with this right in the moment is the circumstances that we find ourselves in: Biden had classified documents, Trump had classified documents, Trump got charged. There was no way the special prosecutor here was going to satisfy everybody," said Eric Gibson, a former Justice Department public corruption prosecutor.
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Richer reported from Boston.
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The story has been corrected to reflect that then-FBI Director James Comey announced a final conclusion to the Hillary Clinton email investigation two days before the 2016 election, not nine days before.