Release of Hur Report Underlines Perils of the Special Counsel’s Job

WASHINGTON — In January 2023, Attorney General Merrick Garland appointed a special counsel to investigate President Joe Biden’s handling of classified documents to avoid any perception that he was protecting his boss entering an election year.

The man Garland tapped for the job, Robert Hur, has not been quite as cautious.

On Thursday, Hur, 50, a former Justice Department official in the Trump administration, dropped a 345-page political bomb into the middle of the 2024 campaign, the final report summing up his investigation. The document, written in unvarnished prose, is an excruciatingly detailed and seemingly subjective assessment of Biden’s faulty memory that overshadowed his conclusion: Biden, unlike former President Donald Trump, should not face criminal charges.

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The Hur report underlines the challenges of deploying special counsels, which are intended to shield prosecutors from political meddling but often result in the release of negative information about high-profile targets who have been cleared of criminal wrongdoing. It also showed the complicated balance of the job — navigating a polarized environment that leaves little option but to expansively explain the rationale for any decision.

Hur is no stranger to high-wire investigations and legal conflict. Under the Trump administration, he spent 11 months as the top aide to the deputy attorney general, Rod Rosenstein, as Rosenstein oversaw the appointment of special counsel Robert Mueller to investigate Trump’s connections to Russia.

Hur’s critics say he broke through guardrails intended to avoid tarnishing politicians facing tough elections. That was perhaps best exemplified by FBI director James Comey’s public condemnation of Hillary Rodham Clinton’s handling of government secrets, delivered in the months before the 2016 election.

Among the thousands of sentences in the Hur report, one juts out like a dagger: “Mr. Biden would likely present himself to a jury, as he did during our interview with him, as a sympathetic, well-meaning, elderly man with a poor memory,” he writes.

It is not unusual for witnesses in federal cases to cite their faulty recollections, particularly about events occurring years earlier, in interviews with investigators. But Hur included references to Biden’s memory that did not relate directly to retention of classified documents — including the president’s struggle to recall the year (2015) when his son Beau died, a shattering event in his life.

Those revelations, immediately seized upon by Trump supporters, were seemingly at odds with the purview of Hur’s job as special counsel, according to critics.

“Special Counsel Hur report on Biden classified documents issues contains way too many gratuitous remarks and is flatly inconsistent with long standing DOJ traditions,” Eric Holder Jr., President Barack Obama’s attorney general, wrote on social media, reflecting a widening sense that the disclosure inflicted political damage on the president.

Anthony Coley, Garland’s spokesperson when Hur was appointed, said the focus on Biden’s memory crossed a line.

“He was supposed to be an umpire calling balls and strikes,” said Coley, who interacted with Hur at the department. “But the editorializing — the excessive, unnecessary commentary about an uncharged individual — felt like political potshots.”

A spokesperson for the special counsel declined to comment.

Current and former department officials said Hur’s narrative was probably motivated by self-preservation. He needed to justify his decision not to charge Biden when the government had indicted Trump for similar, albeit far more serious, transgressions, they said. (Hur said Biden shared the content of his handwritten notebooks, which contained references to classified material, with his ghostwriter.)

And while he has mostly operated in private, that will soon end. Hur is expected to testify about his findings before Congress, where Republicans will almost certainly accuse him of applying a “two-tiered” standard of justice that favored Biden and punished Trump.

Garland, for his part, could have redacted portions of the report that he deemed inappropriate or were flagged for national security concerns.

But he chose not to, in keeping with the practice of attorneys general not to intervene with special counsels, and because department officials think the material would be aired during Hur’s congressional testimony anyway, according to a person familiar with their thinking, speaking on the condition of anonymity to discuss details of the investigation.

The report was likely to do little to improve Garland’s standing among members of Biden’s inner circle, who have been frustrated by his deliberative approach to the Trump investigations.

The federal regulations governing special counsels include few explicit instructions on how a final report should be drafted.

The firestorm over Hur’s findings also reflected serious, perhaps irreconcilable, problems with department rules governing special counsels, independent investigators intended to shield political appointees from accusations of political interference.

Justice Department practice dictates that prosecutors “speak through filings” — criminal complaints filed against defendants — rather than in public statements.

But if a special counsel chooses not to indict someone, they are, in a sense, obligated to disclose unflattering behavior that falls short of criminality to explain why they have not brought charges, as was the case with Mueller’s investigation into Trump’s connections to Russia.

Hur’s executive summary, which contains many of the most quotable characterizations about Biden’s memory and age, reads like a standard internal department memo drafted to justify a non-prosecution decision, former prosecutors said. Those are typically circulated inside the department and provide an unvarnished assessment of the likelihood of a case passing muster with a jury.

But Bob Bauer, Biden’s personal lawyer, thought Hur went over the line, accused him of disregarding Justice Department “regulations and norms” and compared the special counsel’s conduct to that of Comey, who came under fire over his sharp criticism of Clinton.

In a letter included in the appendix of the report, Biden’s lawyers called the inclusion of discussion of Biden’s memory “pejorative.” The five-hour interview with the president, they noted, had taken place shortly after the Oct. 7 terrorist attacks on Israel, after Biden had spent hours on the phone with foreign leaders.

Hur was Trump’s pick to run the U.S. attorney’s office in Maryland, where he earned praise from the state’s Democratic senators for his handling of violent crime and public corruption cases.

Hur, who has been listed as a registered Republican in Maryland, completed his undergraduate degree at Harvard University and received a law degree from Stanford University.

But it was his time working with Rosenstein, then the deputy attorney general, that may have best prepared him for his current role.

Hur helped run the day-to-day operations of the department during a period of major tumult: From mid-2017 to late 2018, Rosenstein was under threat of being fired by Trump over his decision to appoint Mueller, which the president considered a personal betrayal.

“We were coming under tremendous criticism from the commentators — and the president — and Rob kept his head down, pushed ahead and never lost his sense of humor,” Rosenstein said in an interview after Hur’s appointment was announced.

“Every special counsel starts with a sterling reputation, but no one finishes up that way,” he said at the time.

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