Robert Hur’s report exaggerated Biden’s memory issues

When special counsel Robert Hur released his report last month explaining why he wouldn’t charge President Joe Biden with mishandling classified documents, his claim that Biden displayed a “poor memory” and “diminished faculties” in their interview received enormous attention.
But now, the full transcripts of Hur’s interviews with Biden have been released — and they make Hur’s claims about Biden’s memory appear cherry-picked and exaggerated.
Biden sat for more than five hours with Hur’s team over two days. In that time, he said he did not recall specifics about how particular boxes ended up in his residences or offices after his vice presidency. But he engaged at length about his process for handling classified information and many other topics.
Hur’s claim that Biden had demonstrated some sort of general “poor memory” hangs almost entirely on mix-ups by Biden about in what specific year several years-old events occurred. The transcript makes clear Biden remembers all those events. But it seems Biden just doesn’t pay a lot of attention to which specific year stuff happened in.
So why did Hur hype this up so much?
His report and his House testimony Tuesday suggest one reason. Hur proposed a theory, outlined in the report, about Biden’s deliberate wrongdoing — that Biden kept classified documents about Afghanistan policy deliberations to help burnish his reputation and legacy.
However, Hur couldn’t prove this theory, in part because Biden said he couldn’t recall why these documents were in his garage. Hence, the special counsel bashed Biden for his “poor memory” — knowing full well how that would play when the report became public.
Hur’s treatment of Biden’s memory conflates several things that are not necessarily the same phenomenon:
First is the legalistic “I don’t recall.” This is a standard answer deployed in response to adversarial prosecutorial questioning. It can be the truth. It can also be a dodge from someone with something to hide, since it theoretically helps prevent prosecutors from catching you in a lie — how can they prove if you simply forgot something?
Second is understandable, normal forgetfulness about the details of past events — since virtually no one has perfect recall of everything that happened years ago.
Third is a genuinely unusual memory failure suggestive of cognitive decline.
Hur testified Tuesday that Biden’s memory was a legitimate topic for him to focus on because Biden gave several “I don’t recall”-esque responses. For instance, when asked why he was recorded telling his ghostwriter in a February 2017 interview discussing Afghanistan policy that he “just found all the classified stuff downstairs,” Biden said he didn’t remember that happening.
But Hur’s testimony suggests he may not buy Biden’s purported memory failures. His team developed a theory, explained in the report, surmising that Biden kept classified documents about the Obama administration’s 2009 decision to surge troop levels in Afghanistan in order to prove that he was on the right side of history on this issue.
There are problems with this theory, though, as Hur’s own report acknowledges. For one, the ghostwriter in question was writing a book about a later period in Biden’s life (the period when his son Beau was sick), and the book never mentions that 2009 debate at all.
Additionally, the documents were found in a beaten-up box in Biden’s garage. “A reasonable juror could conclude that this was not where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy,” Hur’s report says. “Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of.”
Ultimately, Hur didn’t have the evidence to prove Biden’s intent. So, following in the footsteps of former special counsel John Durham, who labored without success to prove theories of Democratic malfeasance in the Trump-Russia investigation, he released a report that kind of swipes at his target anyway.
Rather than simply admit to failing to prove his case, Hur used the standard “don’t recall” answers to try and advance a larger narrative about Biden’s age and memory.
To do so, he picked a handful of examples of purported memory failures unrelated to the documents themselves. Some of these can be explained perfectly well by Biden simply misspeaking in the moment.
But one stood out as egregious even to many inclined to defend Biden: “He did not remember, even within several years, when his son Beau died,” the report claimed.
So what happened here?
The transcript makes clear that Biden remembered the day of Beau’s death (May 30), but seemed to be genuinely mixed up on which year it happened.
The context is that Hur was asking Biden where he kept his papers in 2017. He had also previously been asking about what Biden’s plans were for his future at that time — for instance, whether he intended to go into business, or whether he knew he’d run for office again.
Biden responded by attempting to tell his frequently told tale about how he eventually decided to run for president. Here’s the way the story, a condensation of two-and-a-half years of events in Biden’s life, is supposed to go: In early 2015, a sick Beau made him promise to stay involved, before dying. Biden then decided not to run for the 2016 cycle, but once he was out of office, the white supremacist violence in Charlottesville in August 2017 made him realize he had to run again, to fulfill his promise to Beau.
Biden has repeated this story endlessly in recent years, but in impressionistic fashion without generally pausing to note specific dates — and never to a prosecutor trying to nail down specific facts and details. And, in telling the story to Hur, he got mixed up on the sequence of events, and about which year particular events occurred.
It is admittedly odd for a lifelong politician to get mixed up on which year is a presidential election year. But again, there’s no actual forgetfulness being demonstrated about what events happened, just imprecision about exactly when they happened.
Considering all this, Hur’s report looks less like a smoking gun proving Biden’s supposed age-related decline, and more like dirty pool, Rep. Adam Schiff (D-CA) argued.
“You know this, I know this, there is nothing more common with a witness of any age, when asked about events that are years old, than to say ‘I do not recall.’ Indeed, they’re instructed by their attorney to do that, if they have any question about it,” Schiff said.
Hur argued back that his consideration of Biden’s memory was relevant to his charging decisions, and that he was perfectly willing, indeed required, to explain his thinking on that topic in his report to the attorney general.
Schiff disputed this. “What is in the rules is, you don’t gratuitously do things to prejudice the subject of an investigation when you’re declining to prosecute. You don’t gratuitously add language that you know will be useful in a political campaign.”
“You were not born yesterday,” Schiff added. “You understood exactly what you were doing. It was a choice.”