The characterization of Joe Biden “as a sympathetic, well-meaning elderly man with a poor memory” in Special Counsel Robert Hur’s report was intentionally damning. There were a great many other ways to express his point, that Biden would have made a sympathetic witness had he testified in a prosecution, without calling him a doddering and demented old man. While it wasn’t Hur’s job or inclination to be kind to Biden, it also wasn’t his job to do as much political damage as possible while declining to prosecute, which was never seriously on the table given Biden’s cooperation with the FBI and his immediate return of all classified documents.
But what isn’t well understood is that Hur, as special counsel, had a duty to explain his decision not to prosecute to the attorney general in a report.
The current special [counsel] regulations provided that the special counsel, at the “conclusion” of his work, “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” 28 CFR § 600.8(c). This requirement is salutary. The Attorney General should know why the special counsel is, or is not seeking an indictment.
In the normal course of affairs, a decision to decline prosecution is never known. People who were targets are left to dangle in perpetuity when the government decides not to proceed, which has long been considered an exercise in impropriety as it leaves the innocent tainted and under threat even when the government has determined that they will be left alone. But special counsel has a duty to report back to the AG and explain his decision.
The regulation doesn’t provide how lengthy or in depth the report has to be, but just that it has to be. Hur could have provided a report that said little more than that his decision was based on the found facts and that the target was sympathetic. But the regs go further.
The regulations, however, do more than require the special counsel to give a confidential report to the Attorney General. The regulations create an expectation that the Attorney General will publicize the report:
The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. 28 CFR § 600.9(c).
Whether that creates an expectation, as Josh Blackman asserts, isn’t all that clear. It provides authority to do so, but it’s permissive and qualified. The concern is that if the attorney general does’t release the report, it suggests a lack of transparency, that there’s something to hide. And indeed, there is. An investigation into a person who will not be prosecuted is something that ought to be hidden. But what if that person is a president or presidential candidate?
Josh argues that the reg is a mistake and should be rescinded, so as to eliminate the expectation and provide cover to the AG for not releasing a report about an innocent person.*
This provision is a mistake. If the special counsel recommends an indictment, and the official is indicted, let the indictment speak for itself. If the special counsel declines to recommend an indictment, simply decline to indict, and let everyone move on with their lives. Again, there is no actual mandate to release the report. But this provision creates an expectation that it will be released.
If the regs precluded release of the report, and the indictment spoke for itself in the case of a person whom special counsel determined deserving of prosecution, it would take the burden off of the shoulders of the attorney general. That would certainly make the AG’s duty simpler, even if it may not be quite so easy to “let everyone move on with their lives.”
But the fact that the regs required a report from Hur does not quite explain why the attorney general and almost Supreme Court justice, Merrick Garland, decided to release the report in full. Sure, it almost certainly would have brought a storm of criticism on Garland’s head had he not released the report, at least from some quarters, but being attorney general isn’t supposed to be a job for people easily wounded by harsh words.
Second, the Attorney General will no longer be forced to consider whether to invoke executive privilege and redact portions of the report. Indeed, since nothing would be redacted, the special counsel could be even more forthright in his recommendations. Remember, there was lengthy litigation over redactions made by Attorney General Barr. And perhaps Attorney General Garland should have whipped out his redaction marker for the Hur report. Third, if the report is never released, the Attorney General would not be put in the tough spot of trying to summarize a report he disagrees with.
Josh is being far too kind to Garland. The “elderly man with a poor memory” language provided a secondary explanation for Hur’s declination. It was politically explosive, a point that Hur could not have missed in his decision to choose those words, and it is of dubious merit. Names and dates are often confused by people far younger than Biden. It does not mean they’re demented and incompetent, and has no bearing on the wisdom born of experience. Garland could have put on his big boy attorney general pants and either provided a summary of Hur’s report or, more appropriately, merely announced that Special Counsel Robert Hur, after completing his investigation of Joe Biden, had decided that it was not appropriate to prosecute.
But Garland simply released the report, as if it was out of his hands. This was Garland’s choice.
As for Biden’s mental acuity, we can watch him, hear him and reach our own conclusions. We don’t need Hur’s report to tell us what we think about Biden’s age.
*Remember, in our system, every person is innocent unless and until he pleads or is found guilty of a crime.