The Prosecutor & The President

On Tuesday at 10:00 a.m in Washington, D.C., Robert Hur, who Attorney General Merrick Garland appointed as special counsel after classified documents were found in President Biden’s post-Vice Presidency office and his home, will testify on Capitol Hill.

Hur released his investigative Report last month, concluding there was no basis for prosecuting Biden, whose staff discovered the items and then authorities to the find before voluntarily turning them over and subsequently permitting the FBI to search to ensure everything had been found. Hur was Donald Trump’s U.S. Attorney for Maryland.

When the report was released, many commentators focused on Hur’s assessment of Biden as a “well-meaning, elderly man with a poor memory.” The comment was gratuitous and had no place in a report issued by a serious prosecutor. The language aligned with political arguments being made by Trump on the campaign trail far too neatly.

The drama over that one line in the 300+ page Report obscured the salient fact here: that unlike Donald Trump, who was indicted because after the National Archives realized he had classified material at Mar-a-Lago, Trump lied about it, refused to return it, and ultimately obstructed the investigation that led to his prosecution, Joe Biden voluntarily returned materials he discovered himself. Mens rea—an individual’s state of mind when they are doing something—is often the dividing line between conduct that is careless and conduct that is criminal. That’s the case here. Biden was cooperative, while Trump was obstructive. But that key point was lost in Hur’s characterization of Biden’s appearance when he sat with prosecutors for an interview—something Trump has never done from the days of the Mueller investigation to his current spate of criminal cases.

Trump will undoubtedly use Hur’s appearance tomorrow to cry witch hunt, because really, that’s what he does. He’s the master of obscuring the truth with invective. House Republicans have shown a willingness to pursue Trump’s dictated political narrative at the expense of the truth. But the reality here is that no reasonable prosecutor would have indicted Joe Biden, and similarly, Mike Pence, who also found that he had retained classified material when he left office and voluntarily turned it over and was not prosecuted either.

Prosecutors must be able to prove the elements of a charge to indict and convict. There is the “actus reus”—the act that the law proscribes, but it must be committed with the “mens rea”—the state of mind the law requires. With Trump, his obstruction and efforts to move the documents away from the area his lawyers would review shows that he knew the documents were there and deliberately tried to retain them and prevent the investigation from recovering them. With Biden and Pence, despite finding documents still in their possession, there wasn’t evidence they intended to violate the law, instead returning them voluntarily once they became aware of their existence.

This is the kind of line-drawing prosecutors engage in when they evaluate cases. Hur drew this line here and didn’t indict Biden (or Pence). But the former president’s political narrative avoids the essential facts and trucks in Hur’s unfortunate excess.

When Hur testifies on Capitol Hill tomorrow, listen closely to what he’s asked and what he says if you’re able to tune in. Expect both misinformation and disinformation to circulate (many thanks to Barb McQuade and her new book, Attack from Within, for helping us to appreciate the difference—disinformation comes from people who knowingly circulate false information, while misinformation comes from their dupes who pass it on, believing it to be true). Be prepared to refer people to the Report itself, which is linked up above, and to the bottom line conclusion made by experienced prosecutors: Joe Biden didn’t violate the law. Donald Trump did.

This may seem like a small thing, but Trump has a way of blowing up the small things and exploiting them beyond reason. He’ll use this on the campaign trail and his base will swallow it if he isn’t checked. So it’s important to push back every chance we get, especially in conversations with friends and family who may hear this on the news or see it on Facebook and be unaware of the truth. Donald Trump is not the victim of a witch hunt, and he cannot be permitted to continue to play the victim, yet again.

We’re in this together,

Joyce