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. 

The new GOP and the power flow that created it

This WaPo opinion by EJ Dionne is spot on (whole opinion not paywalled off):

Let’s just say it: The Republican problem is metastasizing

Thomas E. Mann and Norman J. Ornstein shook up Washington with their argument that the U.S. government wasn’t working because of what had happened to the Republican Party.

They made their case in a 2012 book, “It’s Even Worse Than It Looks,” and in a powerful Post op-ed titled “Let’s just say it: The Republicans are the problem.”

“The GOP has become an insurgent outlier in American politics,” they wrote. “It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream, it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”  

Events of the past week not only ratify what they wrote but suggest that matters are, to borrow from them, even worse now.

Power in the GOP has moved away from elected officials and toward those right-wing “commentators” on television, radio, podcasts and online. The creation of ideological media bubbles enhances their power. Republicans in large numbers rely on partisan outlets that lied freely about what Lankford’s [border bill] compromise did and didn’t do, rather than on straight news reports.

The party’s hostile vibe can also be traced back to a habit in the Bush years to distinguish between “real America” (the places that vote Republican) and what is presumably unreal America. Declaring a large swath of the population to be less than American means they’re not worth dealing with and, increasingly, easy to hold in contempt.

In the 2020 book, Political Science for Dummies, the first sentence of the first chapter reads: 

Political science is the study of politics and more precisely power 

Mann and Ornstein were among the first of prominent observers I am aware of to point out in 2012 that the GOP had degenerated. In my view the degeneration was moral rot, because by then, I had adopted pragmatic rationalism as the most moral way to do politics in a democracy.[1] With fidelity to facts and true truths as core moral values, the sheer mendacity and alt-facts the GOP had come to accept and help normalize made the GOP party leadership look morally rotten and authoritarian. 

The question what about the rank and file became more urgent after DJT came on the scene. Nowadays I have an opinion about that, but will keep it to myself.

The point of this post is to just remind people to keep an eye on where power flows and who wins and who loses from power flow, no matter what the power seekers tell you. They are usually lying.

Footnote:

1. With authoritarianism, morals are mostly irrelevant. Authoritarian systems operate on the basis of power and how much the usually kleptocratic dictators, plutocrats and theocrats can get away with before they cause a major rebellion. For authoritarians, facts, true truths, sound reasoning and service to the public interest are all ignored, downplayed, denied or deflected when inconvenient for the power party line. Demagoguery, lies, slandering and crackpottery are dominant. Hybrid authoritarian-democratic systems are some mix of those things.

News chunk & bits: Dem discontent with Garland?; The Mar-a-Lago stolen docs case update; Etc.

In May of 2021, I concluded that Merrick Garland was grossly incompetent and needed to be replaced immediately. That wonderful post is entitled, Federal law enforcement continues to fail: Fire Merrick Garland. I was criticized for being too impatient. My concern then, and still is today, is that Garland was moving far too slowly in investigating and indicting Trump. By delaying so long to even get started, Garland seriously failed us and the rule of law. Now, in February 2024, some other folks are finally starting to come to the same conclusion about Garland and for the same reason. Politico writes:

White House frustration with Garland grows

The president believes the special counsel investigating his handling of classified documents went beyond his remit. And part of the blame is being placed on the AG.

Biden and his closest advisers believe Hur went well beyond his purview and was gratuitous and misleading in his descriptions, according to those two people, who were granted anonymity to speak freely. And they put part of the blame on Garland, who they say should have demanded edits to Hur’s report, including around the descriptions of Biden’s faltering memory.

Frustration within the White House at Garland has been growing steadily.

Last year, Biden privately denounced how long the probe into his son was taking, telling aides and outside allies that he believed the stress could send Hunter Biden spiraling back into addiction, according to the same two people.

“What Democrats do is they bend over backwards not to look partisan, and then they end up hiring people that are partisan but in the other direction,” said a Biden donor, granted anonymity to speak freely about the top law enforcement official in the country. “There’s no question in my mind that the villain here is Merrick Garland.”

But even as the frictions between the White House and DOJ remain relatively contained, outside Democrats are now openly airing their disapproval with Garland’s conduct, and their fears that his selection as attorney general may end up being fatal for Biden.

“Garland is far and away Biden’s worst appointee by an order of magnitude,” Robert Kuttner, co-founder of the liberal American Prospect. “And we all pay the price. If Biden goes down the drain because Garland has mishandled the investigation of Trump and gave Republicans a weapon … then the country pays the price. It’s not just that Biden gets punished for the stupidity of appointing Garland.”

Despite the “growing discontent” among some Dems, Biden has no intention of replacing Garland now. Maybe if Biden is re-elected, he will replace Garland then. Although it is probably too late to have a meaningful impact, Garland should still be fired immediately, assuming it doesn’t make the legal mess even worse.

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Various sources are reporting that special prosecutor Jack Smith is losing patience with pro-Trump Trump judge Aileen Cannon in the Mar-a-Lago stolen documents case in a Florida federal court. Cannon has been sabotaging the prosecution and slow walking everything to protect Trump as long as possible. One of Cannon’s idiotic cannon blasts could easily wind up getting some innocent witnesses murdered. Law & Crime writes about the threat to witnesses she wants to create by doxxing them:

Special counsel Jack Smith has called out U.S. District Judge Aileen Cannon, saying her recent order to unseal redacted discovery records in former President Donald Trump‘s impending classified documents trial would needlessly expose witnesses and potentially trigger intimidation and threats — including to her.

In a 22-page motion for reconsideration and stay, Smith laced into the judge as he attempts to fight off public exposure to a swath of unredacted documents before what is a tentatively set May 20 trial date.

“That discovery material, if publicly docketed in unredacted form as the Court has ordered, would disclose the identities of numerous potential witnesses, along with the substance of the statements they made to the FBI or the grand jury, exposing them to significant and immediate risks of threats, intimidation, and harassment, as has already happened to witnesses, law enforcement agents, judicial officers, and Department of Justice employees whose identities have been disclosed in cases in which defendant Trump is involved,” Smith wrote.

If a deranged Trump supporter with a gun winds up murdering a witness, that blood will be on Cannon. She is a corrupt, morally rotted judge who really ought to be impeached before she gets someone killed.

On the delay front, Smith lashed out at another bad faith attempt by Trump to further slow the already snail’s pace trial, by filing new motions that assert Trump is immune from prosecution, even though the crimes he is on trial for in Florida occurred after he left office. Law & Crime writes: 

In a new motion, special counsel Jack Smith shredded Donald Trump’s latest attempt to indefinitely delay the classified documents case in Florida before U.S. District Judge Aileen Cannon, urging the court to resist the former president’s efforts to “stop at nothing” to delay facing a jury.

“Their objective is plain — to delay trial as long as possible. And the tactics they deploy are relentless and misleading — they will stop at nothing to stall the adjudication of the charges against them by a fair and impartial jury of citizens. The Court should promptly reject the defendants’ motion,” Smith wrote in the 9-page brief filed in Florida late Thursday.

A tentative May 20 trial date has been set but it increasingly looks like that won’t get off the ground as Cannon has agreed to extend deadlines for other pretrial issues.

Most offensive to the special counsel is Trump’s attempt to dismiss the 40-some charges he faces for alleged illegal retention of sensitive and classified documents by attempting to advance an argument of “presidential immunity.”

The conduct charged took place after Trump left office, Smith wrote.

“The only purpose for such a frivolous motion in this case would be to artificially create a new avenue for potential delay, this time by attempting to manufacture an opportunity for a frivolous interlocutory appeal. It is another transparent effort to stall the trial,” the motion states.

Here, Trump delays by claiming immunity for crimes he committed after he left office. At this rate, Trump probably will succeed in delaying completion of this trial until after the Nov. election. If he is re-elected, this case will be dropped. Then, Trump will once again face no punishment for his crimes. Not only that, he will be the US president with freedom to commit a slew of new and much nastier crimes. 

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Christian nationalism update -- normalizing thoughts of civil war: Newsweek reports:

Evangelical preacher Andrew Wommack said that a "civil war" would be "worth it" if it meant getting former President Donald Trump back into the White House

"I've actually had people say that if Trump was to be elected if we got a conservative Congress, that they fear that we would have another civil war," Wommack said during a Wednesday episode of his Truth & Liberty show. "And you know what? I don't want a civil war, I don't know anybody that does, but would it be worth it? To turn this nation back? I believe it would."   

Wommack's remarks came in response to a call from a viewer who asked if it would be possible to have a "grace revolution" that would create a nation that would "use the Bible as the Constitution." In response, Wommack said there was nothing wrong with the U.S. Constitution, but rather the "problem" is that no one is following it.

"At no time did Mr. Wommack call for, or even suggest that, civil war is a goal or an expectation. Mr. Wommack also emphasized that our Constitution is not in need of changing, indeed it is vital that we adhere to its principles."

Here, Wommack does not call for civil war, but cleverly inserts the thought that if Trump is elected and congress is Republican, opponents will probably rebel and engage in a violent civil war. He also says no one is following the Constitution, hence reinforcing the need to defend "conservatism" by mass violence.

Is it just me, or do people notice (1) the raw authoritarianism, radical Christian theocracy, inherent in Christian nationalism, (2) the slanders and sheer cynical, self-righteous manipulation of truth, or (3) to avoid violating the Johnson Amendment, the almost, but not quite, explicit message for Christians to vote for Trump? This is first rate propaganda. Tens of millions of Americans actually believe it and are getting mentally prepped for violent action if DJT loses the 2024 election.

News chunk & bits: An analysis of insurrection arguments; AI lawyering is coming; Etc.

The Nation published an excellent legal analysis that concludes the USSC will leave DJT on the ballot in all states and the vote will probably be 9-0, or maybe 8-1 with Sotomayor dissenting. One point that all the Repubs and two of the three Dems raised is the prospect of some states blithely tossing Biden off the ballot and some seriously tossing DJT off the ballot for actual insurrection, leaving the presidential election a disaster. The Nation eviscerated that argument like this: 

Still, it was only when Jason Murray, the lawyer representing the effort to keep Trump off the ballot, rose to argue that the justices really started tipping their hands. Roberts, along with justices Samuel Alito, alleged attempted rapist Brett Kavanaugh, and Amy Coney Barrett, all asked Murray why one state—Colorado—should be allowed to decide who gets to be on the ballot for, essentially, the rest of the country.  

Murray had a credible answer for this, one that usually wins in conservative circles: states’ rights. 

[But Kagan] (like Roberts and Alito) kept hammering on hypotheticals, in which one state would exclude Trump while other states would exclude “other” candidates, and we’d be left in a situation where each state would have entirely different ballots for the presidential election.

Murray, again, had a basically credible answer to this. He said that we had to trust states to apply their own laws faithfully. He pointed out that insurrection was pretty rare and it was unlikely that states would cynically use the standard for political means. Now, I think we all know that Murray’s hopes and dreams are flatly wrong, given that we’ve all seen what red-state governors like Greg Abbott and Ron DeSantis are capable of. But as a legal proposition, the court shouldn’t be deciding cases based on what it thinks bad-faith politicians will do with its decisions. At the very least, if bad-faith political maneuvers are a thing the court now cares about, it might try applying that standard to its voting rights and gerrymandering decisions first, instead of only suddenly becoming concerned about this when an insurrectionist runs for president.

That argument resonates strongly with me because of the phrase “bad-faith political maneuvers.” It is bad baith and ill-will that characterizes the thinking and behavior of America’s authoritarian radical right wealth and power movement. 

I think the author of this article, Elie Mystal, correctly analyzed the outcome of the insurrection lawsuit. DJT will stay on the ballot in 2024. Mystal ends her analysis like this, echoing Snowflake’s reasoning:

I’ve said repeatedly that there is no way in hell the Supreme Court would allow the likely Republican nominee to be stricken from the ballot. I’ve said repeatedly that courts and judges simply do not have the strength and courage to end Trump’s presidential campaign as a matter of law. I’ve said repeatedly that the only way to be rid of him is to defeat him at the ballot box, again, and beat back his forces who will try to steal the election, again.

Those warnings still hold after the court’s oral arguments. Once again, the law is not coming to save us. According to the Supreme Court, “states’ rights” exist only to make it harder for people to vote, not harder for insurrectionists to rule.

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Such Science published an article about the use of AI to do routine lawyering tasks:

New study shows that AI can lead to cost reductions 

of 99.97% for some routine legal tasks

The goal was to see whether AI can match, or even surpass, the work of junior lawyers in both quality and efficiency.

And the TL;DR answer is that yes, it can.

The study, called “Better Call GPT, Comparing Large Language Models Against Lawyers,” was written by a team of researchers from Onit’s AI Center of Excellence in Auckland, New Zealand (Onit is a company that provides software and advice for legal, compliance, and other corporate departments).

The paper was published on January 24 on arXiv, a directory of preprints that have not yet been peer-reviewed, maintained by Cornell University.

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Rolling Stone reports that a Christian nationalist Hobby Lobby billionaire family will be advertising for God in the Superbowl on Sunday:

This Evangelical Billionaire Family Wants to 

Convert You on Super Bowl Sunday

The Super Bowl will once again feature ads promoting Jesus, thanks in large part to the billionaire family that leads Hobby Lobby.

He Gets Us, the billion-dollar campaign to further raise Jesus’ profile, will be back at the big game this year to spread the good word. According to Greg Miller, a spokesman for the campaign, a 60-second spot will appear in the first quarter of the matchup between the Kansas City Chiefs and San Francisco 49ers, followed by a 15-second spot in the second half of the CBS and Univision broadcasts. Both ads “will emphasize loving our neighbors like Jesus did, encouraging people to respect and serve each other,” Miller says.  

The motivation behind the He Gets Us campaign, according to Green, is a desire to reshape public perception of Christians: “What we’re known as, as Christians, we’re known as haters,” he said in a podcast interview last year. “We’re beginning to be known as haters — we hate this group, we hate that group. But we’re not. We are people that have the very, very best love story ever written, and we need to tell that love story. So, our idea is, let’s tell the story. As a Christian, you should love everybody. Jesus loved everybody.”

The atheist peanut gallery had some interesting things to say about this. Apparently some do not fully believe the bit about Christians loving all people:

1. Friendly reminder: the Hobby Lobby CEO knowingly financially supported Islamic terrorists in the Middle East by buying looted antiquities. Hobby Lobby lawyers told him that the antiquities were very likely to be looted. He didn’t care. Then he lied on import forms for some of them. [Here is an AP article about the looted antiquities]

2. Anyone without his money would be in jail for what he did.

3. It’s no surprise this right wing fake-Christian broke the commandment about lying for stolen antiquities.

4. Exactly, I hate it when people use the “no true Scotsman” bullshit because it lets Christians off the hook. Of course not all Christians are like that, but most of them have seemed to turn a blind eye to all of the horrible shit that’s done in the name of Christianity. They should be calling out other Christians when they are being terrible people.

What does the discontented right actually want? How to talk to the rank & file right?

Some people argue that the left needs to be more respectful of the complaints and demands of voters on the right. That sounds reasonable in theory. What about in practice? Who are the right anyway? How are they defined? Gallup poll data as of Dec. 1, 2023 indicated that Biden and DJT were basically tied in approval ratings at about 41% favorable. If that data is reasonably accurate, about 59% of Americans feel that both are unfavorable.

The now radicalized and authoritarian Republican Party no longer puts out policy platforms, so one cannot get a feel for current policy priorities there. Recent polling suggested that the top priority for Republicans is border control. But since Republican voters elected Republican politicians who just killed any chance for border control legislation, it is impossible to reconcile what the rank and file voters claim they want with who they vote for. 

Other items on the Republican list of things that need to be done seem to be getting inflation under control, improving the economy generally, the high cost of health care, deregulating businesses, eliminating the socialist deep state and putting Christianity back into government and society. Like with border control and immigration, there is significant disconnect between Republican opinion about abortion and the politicians they vote for. Recent poll data indicates that 66% of Republicans favor abortion rights with some restrictions, but the politicians they elect tend to pass laws that restrict abortions more than what the rank and file seem too actually want.

There is a fair number of policy ideas that most Dems and most Repubs claim they support. That makes it hard to understand exactly what the right is so vexed about not getting. When policies that a majority of Dems and Repubs support are not implemented, it is usually (~85% of the time?) Repub politicians backed by special interest lobbyists and money who block what the people claim to want. What policies? These for example:

About 61% of Repubs want an official declaration that the US is a Christian nation, but after that, it gets messy as to what that would mean. The messages the Repubs give off are conflicting: Most Republicans Say Christian Nationalism Is Unconstitutional — But Still Support It:

source

Given the overlap in what both most Dems and Repubs claim to want, one has to ask why they don’t get those things. Corruption of politics by special interest money, opposition by rigid Christian and capitalist ideology and constant divisive, infuriating dark free speech seems to be the top impediments.

As far as I can tell, there are two main groups of Repubs. The elites and the rank and file. The elites have the power and are calling the shots. They have to use dark free speech to deceive the rank and file into belief that they want what the ranks and file wants. 

What messaging should the left be offering to the rank and file right and center? Should the US be declared a Christian nation with the Bible controlling the law and overriding the will of the people? What is the will of the people in this point? The will of the elites running the Christian nationalist wealth and power movement is crystal clear -- it wants bigoted Christian Sharia law run by bigoted, corrupt Christian Taliban elites. Meanwhile, 54% of Americans have never even heard of Christian nationalism.

What the rank and file right wants looks to me to be sometimes incoherent and sometimes significantly overlapping with what most Dems want. I do know what the radical right authoritarian elites want, i.e., much more opacity, power and money, with a lot less transparency, social burden (consumer protection laws, etc.) and environmental burden (anti-pollution laws, etc.).

Maybe the best message the left can offer to the rank and file center and right is a respectful ask for them to consider who is blocking progress on the things they want. For example, who blocked the border control bill that most Repub elites and rank and file claimed they wanted? Or, should the left respectfully tell the right that they both want lots of overlapping things and please tell the left how to deal with the politicians that Repub voters put in office? 

Given the cynical bad faith and ill-will that Repub elites operate with, is it even possible for anyone to talk rationally with them? If not, who should rank and file Repubs be talking to?

The October surprise came in February! Biden’s memory problem

Everyone is reporting about Special Prosecutor Robert Hur’s investigation of US government documents that Biden had illegally kept. Biden co-operated with the investigation and turned documents over immediately. The radical right is viciously attacking Biden because the report indicated that Biden's memory was seriously bad. The DoJ has decided no to prosecute Biden for “willfully” keeping the documents. Keep the word willfully in mind. The WaPo reports (full article here not behind paywall):

Special counsel Robert K. Hur’s report, while concluding that criminal charges were not merited for Biden’s careless handling of classified documents, painted a devastating portrait of an 81-year-old president whose age has become a central issue in his reelection campaign, saying his memory was “significantly limited” and that he had “limited precision and recall.” One reason prosecutors concluded they would have trouble pursuing a case was that a jury might see Biden as an appealing — if forgetful — senior citizen.

“At trial, 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,” the prosecutors wrote in their report released Thursday. “Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”

The AP reports:

A special counsel report released Thursday found evidence that President Joe Biden willfully retained and shared highly classified information when he was a private citizen, including about military and foreign policy in Afghanistan, but concluded that criminal charges were not warranted.  

Despite abundant differences between the cases, Trump immediately seized on the special counsel report to portray himself as a victim of a “two-tiered system of justice.”

Yet even as Hur found evidence that Biden willfully held onto and shared with a ghostwriter highly classified information, the special counsel devoted much of his report to explaining why he did not believe the evidence met the standard for criminal charges, including a high probability that the Justice Department would not be able to prove Biden’s intent beyond a reasonable doubt, citing among other things an advanced age that they said made him forgetful and the possibility of “innocent explanations” for the records that they could not refute.

In other words, Biden’s bad memory saved him from being prosecuted. Biden apparently committed at least one felony but that could not be proved in court. The level of intent for willfulness would probably not be provable, so the DoJ decided not to prosecute. 

The irony of all of this is beyond stupendous. On the one hand, this report could cost Biden the election. He will be ripped to pieces by radical right authoritarian media, politicians and blowhards. But on the other hand, (i) Trump was far worse about his stolen documents crimes, (ii) he claims his memory is just fine, and (iii) once in the White House, he will terminate the stolen documents lawsuit against him. In other words, the felon Biden loses the election and avoids a having a criminal record, but the quadruple felon Trump wins the election and also avoids a having a criminal record.

Time will tell how serious this is for Biden’s candidacy, and for democracy and the rule of law in America. Right now, it looks moderately bad for Joe.

Qs: 

1. Is the rule of law an essentially contested concept? (I think it is)

2. Is bad memory Biden better than kleptocrat dictator Trump? 

3. Is this a political hack job by Hur to damage Biden as much as possible (shades of Comey dumping on Hillary in 2016)?