Legal expert: Hur violated 'long-standing DOJ principle' by wading into 'hot-button issue'

09 February 2024

Department of Justice special counsel Robert Hur's new report may have exonerated President Joe Biden from any criminal wrongdoing over his handling of classified documents, but its characterization of Biden's mental fortitude has one legal expert questioning Hur's use of certain language.

Even though the nearly 400-page report concluded that Biden's actions didn't warrant any criminal charges, Hur — whom former President Donald Trump appointed as US Attorney for the District of Maryland in 2018 — still made several digs at Biden. The report mentioned his mental faculties nine times, and Hur referred to the president as a "sympathetic, well-meaning elderly man with a poor memory."

In a Friday panel discussion on CNN, Norman Eisen, who served as special counsel for ethics and government reform in former President Barack Obama's administration, said that he agreed Biden could have shown more care in how he handled documents pertaining to his time as vice president. However, he called Hur's remarks about the president's memory "gratuitous" and uncharacteristic of a prosecutor who is not charging the subject of an investigation.

"I think there's a legitimate discussion to be had [about Biden's handling of documents]," Eisen said. "I was the Obama White House ethics czar, I was talking to the Bush-era ethics czar, and we were surprised that the special counsel veered in our view gratuitously into comments about the president's age and memory that are the most hot-button political issues right now. There's a long-standing DOJ principle that prosecutors should avoid that kind of thing when they don't charge."

The White House issued a terse response to Hur's report, with Biden's personal attorney Bob Bauer and White House special counsel Richard Sauber both demanding Hur revise his characterizations of Biden's memory "so that they are stated in a manner that is within the bounds of your expertise and remit."

"Not only do you treat the President differently from other witnesses when discussing his limited recall of certain years-ago events, but you also do so on occasions in prejudicial and inflammatory terms," Sauber and Bauer wrote. "It is one thing to observe President Biden's memory as being 'significantly limited' on certain subjects... it is quite another to use the more sweeping and highly prejudicial language included later in the report. This language is not supported by the facts, nor is it appropriately used by a federal prosecutor in this context."

The president's advanced age is a topic frequently explored by his critics, who point out that should Biden win reelection, he would be 86 years old by the time he left office in January of 2025. Of course, former President Donald Trump — who is assumed to win the GOP presidential nomination — isn't too far behind his rival. If Trump wins in November, he would be into his eighties by the time his second term ends.

Watch the video of Eisen's remarks below, or by clicking this link.

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