On Hur Report, Democrats Shoot at the Wrong Target

F rom our non compos mentis president on down, Democrats are getting their licks in against Biden Justice Department–appointed special counsel Robert Hur — even after he bent over backward not to indict, despite concluding that Biden willfully violated the law in retaining national-defense intelligence. (And recall that one of the applicable statutes, Section 793(f) — which the other Biden DOJ special counsel has charged against Trump — requires only that prosecutors only establish gross negligence, a mental-state element much easier to prove than willfulness.)

Democrats are firing at the wrong target.

Hur was required by regulation to explain his rationale for charging decisions in a “confidential report.” (See Rule 600.8[c] of the Special Counsel Regs, Title 28, Code of Federal Regulations.) It is then up to the attorney general to decide whether to release all or part of the report to the public. (See Rule 600.9[c].)

Understand: Prosecutorial deliberations over whether to charge people nearly always cast a suspect in a bad light, even if the decision to decline prosecution is made. That is especially the case when the evidence of a crime is strong and the prosecutors must rationalize that other factors — especially, disabilities and the likely impact of them on a jury — justify leniency.

The thing is, in a normal criminal investigation — the thousands upon thousands that go on every day, in federal and state prosecutors’ offices throughout the country — the public is never privy to these deliberations. If government attorneys decide to exercise their discretion to defer prosecution or to refrain from filing charges altogether, the file is closed and the prosecutors move on to other cases.

It is against law-enforcement policy to publicly discuss the evidence against uncharged persons, as well as the personal information about them that factors into charging decisions. Americans are presumed innocent. When a crime is formally charged, then the matter becomes public because all the Constitution’s safeguards for the accused are triggered, giving him an arsenal to defend himself and a judicial forum in which to do it. By contrast, if the government does not formally charge a crime, then the prosecutors are not supposed to sully the suspect in the court of public opinion, where the suspect lacks the forum and often the means to mount a defense.

But since the 1970s ushered in the era of special prosecutors in politically charged cases, it has become customary to publicly release the supposedly “confidential report.” Perhaps that is warranted, on balance, since such prosecutions have been allowed to supplant Congress’s duty to hold the executive branch accountable. But the inexorable result is unfairness to the subject of the investigation who would not be subject to such public humiliation in a normal case.

There is absolutely nothing inappropriate in Hur’s consideration of how Biden’s mental decline would play in a jury trial. Moreover, the special counsel’s job is to make the AG aware of significant litigation issues that might arise if the decision to indict were made. One such issue might be a claim that Biden is unfit to stand trial and meaningfully assist in his own defense — even if, at the time of the criminal acts outlined in the report, his mental faculties were markedly better than they are now.

I get that Democrats are upset by this — although, as I’ve observed a number of times, they are the ones who gave us this norm-smashing world, and they have not had an iota of sympathy for what the lawfare campaign they have waged against Trump has done to him, his family, or other people who’ve been steamrolled in a way that never seems to happen to the Joe Bidens and Hillary Clintons of our politics. But none of Biden’s humiliation is Hur’s fault.

The principal culprit is Biden for willfully retaining classified documents — notwithstanding his hypocritical railing at Trump for doing so. As far as analyzing how Biden’s mental decline should factor into the decision on whether to indict, Hur was just doing his job — and he’d have been derelict if he hadn’t given Garland the full picture, depressing as it is.

If Democrats want to be angry at someone, be angry at Attorney General Merrick Garland. The regs make the report confidential, but Garland is the one who decided to release it publicly. You can argue that, politically, he had no choice. But the truth of it is that he did have a choice. The one who didn’t have a choice is Hur. The reg required him to provide his superior, the attorney general, with a report “explaining the prosecution or declination decisions reached by the Special Counsel.” That’s what he did.