WASHINGTON — The special counsel who impugned President Joe Biden’s age and competence in his report on how Biden handled classified documents after his years as vice president is set to be questioned himself on Tuesday, as House Republicans seek to keep a spotlight on the unflattering assessment of the president.
Robert Hur will appear before the Judiciary Committee to take hours of questions from Republicans and Democrats on his 345-page report, made public last month, in which he concluded that Biden should not face criminal charges for his handling of sensitive government information when he was vice president.
Hur says he didn’t sanitize his findings on Biden but also didn’t disparage him unfairly. Hur will say in prepared remarks that he was aware of the need to explain why he’d decided not to charge the president. Such explanations are common but usually confidential; and so he didn’t hold back, particularly in this case.
“The need to show my work was especially strong here,” he says in his prepared remarks. “The Attorney General had appointed me to investigate the actions of the Attorney General’s boss, the sitting President of the United States. I knew that for my decision to be credible, I could not simply announce that I recommended no criminal charges and leave it at that. I needed to explain why.”
Hur cautioned that he would not discuss investigative steps or veer from the contents of the report. He said “the evidence and the President himself put his memory squarely at issue.”
Biden told investigators he didn’t remember finding any classified material in his home after his vice presidency or telling his ghostwriter that he found “classified stuff downstairs,” Hur said. And Biden also didn’t remember how the documents about Afghanistan got into his garage, Hur said.
“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,” Hur said.
Hur’s report did cite evidence that Biden willfully held on to highly classified information and shared it with a ghostwriter. But the special counsel devoted much of his report to explaining why he did not believe the evidence met the standard for criminal charges, partly based on five hours of interviews with the president.
Hur said it could be difficult to prove beyond a reasonable doubt that Biden intended to keep the documents, which is the standard for conviction in a criminal case. In part, he argued, jurors could be swayed that Biden’s age made him seem forgetful, and there was the possibility for “innocent explanations” for the mishandling of any records.
“Mr. 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,” Hur wrote in his report.
Lawmakers on both sides will try to turn the hearing to their political advantage: Hur will be the rare witness likely to be vilified all around, by Republicans angry over his decision not to charge the president, and by Democrats for his commentary about Biden.
Republicans will work to dig further into Hur’s unflattering assessment of the president’s age and memory — a major attack line as they seek to unseat Biden. Democrats will try to paint Hur, a Trump-appointed former U.S. attorney, as a political partisan out to help his party win a presidential election.
Democrats on the committee have been preparing for the hearing for weeks, with staff bringing in constitutional lawyer Norm Eisen, who served as former President Barack Obama’s ethics czar, to help strategize the best line of questioning, according to a congressional aide.
The aide, who spoke on the condition of anonymity to discuss the private meetings, said members of the president’s party plan to be aggressive with their interrogation. They hope to highlight the fact that despite what they see as inappropriate commentary from Hur about Biden’s age and memories, the special counsel ultimately exonerated him of any criminal wrongdoing.
Republicans, who have been eagerly investigating the president, including a floundering effort to impeach him, will press Hur on Biden’s mental acuity. They also hope to highlight what they say is unfair treatment by Attorney General Merrick Garland of Donald Trump, who has been charged with willfully retaining classified documents. FBI agents searched Trump’s Florida estate in 2022 and removed boxes of documents after he refused requests from the National Archives to return them.
House committees have also subpoenaed the Justice Department for records into the Biden investigation, including transcripts, notes, video, and audio files.
“Special Counsel Robert Hur’s investigation into President Biden’s mishandling of classified documents made two things clear: there’s a double standard of justice in this country, and Joe Biden isn’t fit for office,” Judiciary Chairman Jim Jordan, R-Ohio, said recently.
The report’s release triggered instant comparisons to the history-shaping events of 2016, when FBI Director James Comey castigated Democratic nominee Hillary Clinton over her email practices but did not recommend pressing charges. 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, too, went before a congressional committee, where he offered an impassioned public defense of how he had handled the issue.
And despite the anticipation of political fireworks, Hur — if he’s anything like special counsels before him — won’t stray beyond the report’s findings.
He comes into the hearing with a wealth of experience with politically charged investigations, both as a top Justice Department official during the Trump administration and as Maryland’s chief federal law enforcement officer. As the top aide to the Justice Department’s deputy attorney general in 2017 and early 2018, Hur helped monitor special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election. And he prosecuted a number of political figures — including former Baltimore mayor Catherine Pugh — as U.S. attorney for Maryland from 2018 to 2021.
After stepping down as U.S. attorney, Hur joined the Gibson, Dunn & Crutcher law firm. Among his clients was Facebook in a case brought by D.C.’s attorney general that sought to punish the social networking company for allowing data-mining firm Cambridge Analytica to improperly access data from as many as 87 million users. Hur succeeded in getting that case dismissed last year, though D.C. has appealed.
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Associated Press writers Eric Tucker in Washington and Alanna Durkin Richer in Boston contributed to this report.