A retraction: A professional legal analysis of the Hur report

Mea cupla - I screwed up

On Feb. 9, I posted about the Robert Hur report on the classified documents Biden had in his possession. Hur ripped Biden for having a poor memory and willfully possessing classified documents, but shied away from recommending prosecution. 

I regret and fully retract that post. I’ll will leave my screw-up posted for posterity. It was a big mistake. I relied on reporting by four different mainstream sources, quoting two of them, WaPo and AP. I now believe that all those sources were mostly wrong in how they characterized the way the Hur report treated the evidence. That reporting convinced me the Hur narrative was mostly correct. My mistakes were (1) believing the sloppy, maybe corrupt MSM, and (2) giving one shred of credibility to a bad faith Republican operative from the morally rotted Trump administration. Cold comfort, but to me this analysis indirectly reinforces my long-standing criticisms of Merrick Garland. 

Lessons learned.

A solid, professional legal analysis

Yesterday, Just Security published a detailed legal analysis of the Hur report by Andrew Weissman and Ryan Goodman, entitled The Real “Robert Hur Report” (Versus What You Read in the News): How the Special Counsel report has been misinterpreted. It is very long and very detailed. The bottom line conclusion: 

The Special Counsel Robert Hur report has been grossly mischaracterized by the press. The report finds that the evidence of a knowing, willful violation of the criminal laws is wanting. Indeed, the report, on page 6, notes that there are “innocent explanations” that Hur “cannot refute.” That is but one of myriad examples we outline in great detail below of the report repeatedly finding a lack of proof. And those findings mean, in DOJ-speak, there is simply no case. Unrefuted innocent explanations is the sine qua non [something absolutely necessary] of not just a case that does not meet the standard for criminal prosecution – it means innocence. Or as former Attorney General Bill Barr and his former boss would have put it, a total vindication (but here, for real).

A couple of points:

• Recall how Bill Barr released a deceptive, allegedly Trump-exonerating “summary” of the Mueller report in 2019. Barr refused to release the full report for a full month. That allowed time for Barr’s lies to spread, be repeated dozens of times and sink in with people. Then, after the redacted Mueller Report was released, Trump supporters rejected it and a lot of the rest of the public did not know what to think. Robert Hur pulled the same stunt here, using the same lies tactics to achieve the same end result, namely a deceived or at least confused public. 

• An example of Hur’s mendacity: Hur started his liar summary like this: “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” However buried in the report, it actually it explicitly says there is insufficient evidence of criminality, innocent explanations for the conduct, and affirmative evidence that Biden did not willfully withhold classified documents. For example, at page 6 Hur writes: “In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute.”

• Another example -- two sentences superbly deceptive: At pages 9-10 Hur wrote: “Mr. Biden should have known that by reading his unfiltered notes about classified meetings in the Situation Room, he risked sharing classified information with his ghostwriter. But the evidence does not show that when Mr. Biden shared the specific passages with his ghostwriter, Mr. Biden knew the passages were classified and intended to share classified information.” The analysis describes this sleight of hand deceit like this: “this articulation is so reminiscent of James Comey’s embroidering of the facts: the bottom line is in the second sentence; the first sentence is irrelevant and serves no prosecutorial purpose, which leaves one to rightly wonder why it is included.” Obviously the first sentence was included to deflect from and soften the impact of the second sentence. 

• Merrick Garland had the chance to edit Hur’s liar summary, but he chose not to do so. He was afraid it would look partisan and he would be criticized for it by the authoritarian radical right. Unfortunately, by not editing Hur’s lies, Garland was being highly pro-Trump and anti-Biden partisan. Politico commented about the some push back against this criticism: “Mr. Hur’s report had to be released unedited lest the attorney general were to be accused of protecting President Biden,” former federal prosecutor Gene Rossi said. Some responses by Democrats on this point are frankly incoherent. Too many Dems are ignorant and/or just plain irrational. 

Regarding Garland, Esquire writes:

I have come to the sad conclusion that [] Attorney General Merrick Garland just wasn’t made for these times, and, like Tom Hagen, he’s just not a wartime consigliere. I hung in there longer than most people I know. But, this week, the case against him got overwhelming. The man needs to be thanked for his service and then shown the door.

He is not equipped to use all the tools god gave the Department of Justice to thwart the genuine threat to the Republic that is El Caudillo del Mar-A-Lago, and the dangerous political climate he has created. The former president should have been charged federally with insurrection literally years ago. (Hell, during Thursday’s oral arguments in the Supreme Court concerning the former president’s eligibility under the 14th Amendment, even Justice Brett Kavanaugh wondered why he hadn’t been so charged, and Kavanaugh used to work for Ken Starr, if we’re talking about using all the DOJ’s tools at your disposal.) The DOJ should have gone hammer-and-tongs after all the members of Congress who had the slightest connection with the insurrection. Somebody higher than the bear spray crowd should have been arrested and held until trial. Some of the expensive loafers should have been confiscated during the booking process rather than all those duckboots.

As diligent as Jack Smith has been, and god save the good work, he shouldn’t have been necessary. This business didn’t need a special counsel. It needed the Attorney General and the FBI right from jump.

Thursday was the end for me. Appointing a Republican hack like Robert Hur to “investigate” the non-crimes of the president was bad enough, but then to allow Hur to pile on a political hit piece about the president’s memory, thereby normalizing one of the former president’s attack lines on DOJ stationery, is not admirably fair-minded, it’s constitutionally suicidal. God save us from the fair-minded. They’ll kill the country and wonder how they did it.