HEATHER COX RICHARDSON

FEB 10, 2024

Yesterday, Special Counsel Robert Hur, appointed by Attorney General Merrick Garland in January 2023 to investigate President Joe Biden’s handling of classified documents before he was president, released his report. It begins: “We conclude that no criminal charges are warranted in this matter. We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.” The Department of Justice closed a similar case against former Vice President Mike Pence on June 1, 2023, days before Pence announced his presidential bid, with a brief, one-page letter.

But in Biden’s case, what followed the announcement that he had not broken a law was more than 300 pages of commentary, including assertions that Biden was old, infirm, and losing his marbles and even that “[h]e did not remember, even within several years, when his son Beau died” (p. 208).

As television host and former Republican representative from Florida Joe Scarborough put it: “He couldn’t indict Biden legally so he tried to indict Biden politically.”

Biden, Vice President Kamala Harris, and their teams came out swinging against what amounted to a partisan hit job by a Republican special counsel. The president’s lawyers noted that it is not Department of Justice practice and protocol to criticize someone who is not going to be charged, and tore apart Hur’s nine references to Biden’s memory in contrast to his willingness to “accept…other witnesses’ memory loss as completely understandable given the passage of time.”

They pointed out that “there is ample evidence from your interview that the President did well in answering your questions about years-old events over the course of five hours. This is especially true under the circumstances, which you do not mention in your report, that his interview began the day after the October 7 attacks on Israel. In the lead up to the interview, the President was conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team.”

Nonetheless, they note, Biden provided “often detailed recollections across a wide range of questions, from staff management of paper flow in the West Wing to the events surrounding the creation of the 2009 memorandum on the Afghanistan surge. He engaged at length on theories you offered about the way materials were packed and moved during the transition out of the vice presidency and between residences. He pointed to flaws in the assumptions behind specific lines of questioning.”

They were not alone in their criticism. Others pointed out that Republicans have made Biden’s age a central point of attack, but Politico reported last October that while former House speaker Kevin McCarthy (R-CA) was publicly mocking Biden’s age and mental fitness, he was “privately telling allies that he found the president sharp and substantive in their conversations.” Dan Pfeiffer of Pod Save America and Message Box noted that the report’s “characterizations of Biden don't match those relayed by everyone who talks to him, including [Republicans].”

He explained: “There are few secrets in [Washington], and if Joe Biden acted like Hur says, we would all know. Biden meets with dozens of people daily—staffers, members of Congress, CEOs, labor officials, foreign leaders, and military and intelligence officials…. If Biden was regularly misremembering obvious pieces of information or making other mistakes that suggested he was not up to the job, it would be in the press. Washington is not capable of keeping something like that secret."

But the media ran not with the official takeaway of the investigation—that Biden had not committed a crime—or with a reflection on the accuracy or partisan reason for Hur’s commentary, but with Hur’s insinuations. Josh Marshall of Talking Points Memo noted that the New York Times today ran five front-page stories above the fold about the report and Biden’s memory.

Matt Gertz of Media Matters collected some of the day’s headlines: “Eight Words and a Verbal Slip Put Biden’s Age Back at the Center of 2024 (New York Times); “1 Big thing: Report Questions Biden’s memory (Axios)”; “Biden tries to lay to rest age concerns, but may have exacerbated them” (CNN); “Biden disputes special counsel findings, insists his memory is fine” (CBS News); “Age isn’t just a number. It’s a profound and growing problem for Biden” (Politico); and so on.

As far back as 1950, when Senator Joe McCarthy (R-WI) insisted—without evidence—that the Department of State under Democratic president Harry Truman had been infiltrated by Communists, Republicans have used official investigations to smear their opponents. State Department officials condemned McCarthy’s “Sewer Politics” and the New York Times complained about his “hit-and-run” attacks, but McCarthy’s outrageous statements and hearings kept his accusations in the news. That media coverage, in turn, convinced many Americans that his charges were true.

Other Republicans finally rejected McCarthy, but in 1996, congressional Republicans frustrated by the election of Democratic president Bill Clinton in 1992 and the Democrats’ subsequent expansion of the vote with the so-called Motor Voter law in 1993 resurrected his tactics. They launched investigations into two elections they insisted the Democrats had stolen. They discovered no fraud, but their investigation convinced a number of Americans that voter fraud was a serious problem.

There were ten investigations into the 2012 attack on two U.S. government facilities in Benghazi, Libya, in which four Americans were killed and several others wounded; Republican-dominated House committees held six of them. Kevin McCarthy bragged to Fox News personality Sean Hannity that the Benghazi special committee was part of a “strategy to fight and win” against then–Secretary of State Hillary Clinton.

The strategy of weaponizing investigations went on to be central to the 2016 election, when Trump ran on the investigation of Clinton’s email practices, and to the 2020 election, when Trump tried to weaken Biden’s candidacy by trying to force Ukraine president Volodymyr Zelensky to say that Ukraine was opening an investigation into Hunter Biden and the company he worked for.

Going into 2024, the House is investigating Hunter Biden, and while witness testimony and evidence has not supported their contention that President Biden is corrupt, the stench of the hearings has convinced a number of MAGA voters of the opposite.

And now the media appears to be falling for this strategy yet again.

Political commentator Brian Tyler Cohen outlined how Biden’s performance disproves the argument that he is unfit for the presidency: “The thing about Biden’s memory,” Cohen wrote, “is that he’s presided over the addition of ~15 million jobs & 800k manufacturing jobs, 23 straight months of sub-4% unemployment, surging consumer sentiment, wages outpacing inflation, the American Rescue Plan, Inflation Reduction Act, CHIPs Act, PACT Act, infrastructure law, gun safety law, VAWA, codified marriage equality, canceled $136 billion in student loan debt for 3.7 million borrowers, bolstered NATO, and presided over electoral wins in ‘20, ‘22 and ‘23.”

Political strategist Simon Rosenberg had his own take: “As we end this crazy week I am struck that somehow the claim that Biden's memory is faulty has gotten more attention than a jury confirming that Trump raped E. Jean Carroll in a department store dressing room.”

It may be, though, that the report has been a game changer in a different way than Hur intended it. Hur’s suggestion that Biden does not remember when his son died seems to echo the moment in the 1954 Army-McCarthy hearings in which Senator McCarthy was trying to prove that the U.S. Army had been infiltrated by Communists. Sensing himself losing, McCarthy attacked on national television a young aide of Joseph Nye Welch, the lawyer defending the Army.

“Have you no sense of decency, sir?” Welch demanded. “At long last, have you left no sense of decency?” McCarthy didn’t, but Americans did, and they finally threw him off the public stage.

Biden supporters took their gloves off today, producing videos of Trump’s incoherence, gaffes, and wandering off stages, and noting that he mistook writer E. Jean Carroll, whom he sexually assaulted, for his second wife, Marla Maples, when asked to identify Carroll in a photograph. They also produced clips of Fox News Channel personalities Sean Hannity and Jesse Watters messing up names themselves on screen, and gaffes from Republican lawmakers.

Senior communications advisor for the Biden-Harris campaign T.J. Ducklo released a statement lambasting Trump for a speech he gave tonight in Harrisburg, Pennsylvania, saying: “Tonight, he lied more than two dozen times, slurred his words, confused basic facts, and placated the gun lobby weeks after telling parents to ‘get over it’ after their kids were gunned down at school. But you won’t hear about any of it if you watch cable news, read this weekend’s papers, or watch the Sunday shows.”

But it was Biden who responded most powerfully. “There’s even a reference that I don’t remember when my son died,” he told reporters. “How in the hell dare he raise that…. I don’t need anyone to remind me when he passed away.” And when asked about Hur’s dismissal of him as a “well-meaning, elderly man with a poor memory,” Biden responded with justified anger: “I am well-meaning, and I’m an elderly man, and I know what the hell I’m doing. I’ve been President. I put this country back on its feet.”