Let’s stipulate that Special Counsel Robert Hur had a legitimate public interest reason to explain why he chose not to charge President Biden for mishandling of classified documents. But just as former FBI director James Comey did in 2016, Hur seems to have needlessly used politically explosive words in detailing his decision not to bring charges.
According to the Justice Department’s longstanding policies, federal prosecutors (much less the FBI director or agents) are not allowed to offer negative opinions to the media other than through a published indictment, such as Comey did on July 5, 2016, describing Hillary Clinton’s handling of emails as “extremely careless,” even as he described why nothing she did merited criminal charges. As Richard Frankel, a former FBI agent, told Vanity Fair, “We don’t dirty you up” without an indictment. Donald Trump’s Deputy Attorney General, Rod Rosenstein, correctly wrote in his May 9, 2017, letter that Comey deserved to be fired.
At the same time, there is an obvious rationale for Hur going into such painstaking detail on why Biden’s handling of classified material didn’t rise to the level of a crime: Biden’s predecessor (and likely 2024 general election opponent) was charged with crimes involving his removal of classified documents from the White House to Mar-a-Lago. I found the differences in the two cases as outlined by Hur completely convincing, but my fellow Democrats should tread carefully here.
Numerous Democrats applauded Hur’s decision to contrast Biden’s transparency and cooperation with Trump’s defiant stonewalling. Then they turned around and lambasted the special prosecutor for what they said was a pejorative and gratuitous examination of some of the factors that led him to conclude Biden should not be charged. But they are opposite sides of the same coin.
Where Hur went astray, in my view, was his using politically inflammatory language regarding Biden’s lapse of memory on issues not relating to the criminal charges.
Why did Hur go beyond stating the minimum to explain his decision on Biden? As former White House press secretary Jen Psaki said on her MSNBC show Sunday,
I wasn’t aware that he was also a doctor, but he included this line, basically questioning the cognitive abilities of Joe Biden. And that has been the major focus of coverage about the Hur report.
An experienced DOJ prosecutor also told USA Today that Hur “crossed the line” when he disclosed issues relating to Biden’s memory that “probably had nothing to do with whether President Biden violated the law,” such as the exact date of his son’s death. Furthermore, Hur used those disclosures to predict what a jury might or might not do.
Such speculation by a prosecutor, much less a special counsel investigating a president, is improper. So was his use of politically-loaded adjectives about Biden’s memory. Why did Hur make that choice? Perhaps because there is a sorry precedent for it.
Journalist Elizabeth Drew presciently pointed out that this might happen in a November 3, 2016, New York Review of Books story about James Comey’s grandstanding decision to use the words “extremely careless” to describe Hillary Clinton’s actions.
“By doing something prosecutors simply don’t do, Comey set a dangerous precedent,” Drew wrote.
Any number of prosecutors might conclude later if it was ok for the FBI director to damage the reputation of a person who had just been let off without prosecution … they could feel free to follow suit. … One can only conclude that [Comey’s words] were meant for various audiences not in the room: the Republican-dominated Congress and conservative Hillary-haters.
Whether you are a supporter of President Biden’s reelection (as I am) or a MAGA enthusiast, this is one issue on which we can agree: It is dangerous for DOJ prosecutors to allow their zeal and sense of righteousness to overcome better judgment, sometimes at the risk of fundamental fairness and due process.
This article was originally published by RealClearPolitics and made available via RealClearWire.
Editor’s Note: the views expressed herein are the author’s own and do not represent those of CNAV.
Lanny Davis is the founder of the Washington, D.C., law firm, Lanny J. Davis & Associates. He is one of the first to use the concept of legal crisis management to solve client problems – operating at the intersection of law, media, and politics. He is a former special counsel to President Bill Clinton in 1996-98 and served on a privacy and civil liberties panel appointed by President George W. Bush. He has been writing his “Purple Nation” column for more than 13 years.
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