Robert Hur description of Joe Biden as a "well-meaning, elderly man with a poor memory" has new resonance after last week's disastrous debate.
ANDREW CABALLERO-REYNOLDS/Getty Images
President Joe Biden is in a political crisis. He is losing the 2024 presidential race, with former President Donald Trump regularly trouncing him in polls of swing states.
Many of Biden's problems stem from the perception that he has, to some degree or another, lost his marbles. Biden is 81 years old and, if he completes another term, would be 86 by the end of his presidency.
There is a move he can take to help turn the tides: Release the Hur tapes.
Until last week's presidential debate — which Biden hopes to counter with a live ABC News interview Friday night — the biggest blow against Biden came from Robert Hur, a special counsel appointed by his own Justice Department.
Hur interviewed him for five hours in October, across two days, for his investigation into Biden holding onto classified documents from his time as vice president.
Hur, in an investigative report concluding that he would not bring any criminal charges, explained that jurors may not be willing to convict the president.
"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," Hur wrote in his report. "Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt."
In later testimony before Congress, Hur said Biden "himself put his memory squarely at issue." Biden appeared to forget the date that his son Beau Biden died and mixed up the dates of his own vice presidency, according to a transcript of the interview that was made public.
"What I wrote is what I believe the evidence shows, and what I expect jurors would perceive and believe," Hur said in his congressional testimony. "I did not sanitize my explanation. Nor did I disparage the president unfairly."
Biden reacted angrily to the report, insisting in a White House press conference that his "memory is fine." His White House lawyers also wrote letters objecting to the language, writing Hur characterized Biden's memory "in sweeping, quasi-medical terms."
"This is the very definition of a derogatory comment that violates DOJ policy: unsupported personal opinion criticism on uncharged conduct that is outside the Special Counsel's expertise and remit," the lawyers wrote.
There is a very easy way to resolve this debate: Release the audio recording of the interview and let the American people decide for themselves.
In an interview with law enforcement, did Biden appear old and addled? Or, as his lawyers argued, was he lucid with a few understandable lapses for someone trying to recall years-old events?
Biden himself is holding up the release of the audio, according to White House Press Secretary Karine Jean-Pierre, who told journalists in May that the president asserted executive privilege to keep the recording private at the request of US Attorney General Merrick Garland. (The Justice Department said in a court filing that it made an audio record of the interview, recorded across several files, but not video.)
The fight over the audio has sometimes been cast as a partisan battle. Republicans in the US House of Representatives held Garland in contempt of Congress for refusing a subpoena to hand over the audio, along with other records from Hur's investigation. This month, they filed a lawsuit asking a federal court in Washington, DC, to order the Justice Department to release the material. Judicial Watch, a conservative government watchdog organization, has also sued to obtain the tapes.
A coalition of media organizations — including Business Insider — filed a lawsuit against the Justice Department as well. The department has refused to fulfill Freedom of Information Act requests seeking the interview recordings.
Win McNamee/Getty Images
In court, the Justice Department has raised a few defenses. The interview recordings are protected by executive privilege, DOJ lawyers say. Releasing the recordings can have a chilling effect on potential cooperators in other investigations, where people may not be willing to talk to DOJ lawyers out of fear that the recordings could be publicly disseminated, they argue. The audio of Biden's interview could be manipulated by deepfakes in a politically volatile moment, they say.
Biden could short-circuit those concerns by waiving privilege or ordering Garland to publish the audio. The taxpayer-funded interview with a taxpayer-funded subject of the most important public official in the country is clearly something the public should see.
Neither White House representatives nor Bob Bauer, Biden's lawyer representing him in the Hur investigation, responded to Business Insider's requests for comment.
The notion that Biden has any sort of privacy interest in the audio — particularly when the transcript is already public — does not make any sense.
There is "colossal public interest" in the audio, as Charles Tobin, an attorney at Ballard Spahr representing the press coalition, wrote in a court filing.
Hur invoked Biden's mannerisms in his report, referring to his "pauses, hesitations, mannerisms, and intonations" to describe the president as having "diminished faculties in advancing age, and his sympathetic demeanor." It's the audio recording that can help Americans see that for themselves as they evaluate Hur's recording.
"The health of our democracy relies on transparency into and trust in our government," Tobin wrote. "That trust in the Special Counsel's weighty decision is best served through public review of the Recording on which the head prosecutor expressly relied."
