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On Tuesday, the House Judiciary Committee questioned former special counsel Robert Hur about his investigation and report into President Biden's mishandling of classified information.
Unsurprisingly, both Republicans and Democrats used Hur and his report to score political points. Democrats sought to turn Tuesday's hearing into a show trial targeting former President Donald Trump for hiding classified information at his Mar-a-Lago resort. Republicans questioned why Hur declined to press charges when he discovered that Biden had been bringing classified information home and to his personal office for decades.
But Republicans on the committee missed their big opportunity. Instead of focusing on whether Hur should have impeached Biden, they should have focused on why Hur No impeach Biden. Hur famously wrote in his report last month that he declined to bring charges against the president because, in part, he was an “old man with a bad memory” with whom a jury might sympathize.
FORMER SPECIAL COUNSEL ROBERT HUR TESTIFIES ON RESULTS OF BIDEN CLASSIFIED DOCUMENTS INVESTIGATION
For most Americans, the important question is not whether Biden took classified documents home after the end of his vice presidency in 2017, but whether he is mentally fit to continue serving as president. In fact, under long-standing Justice Department precedent, federal prosecutors are prohibited from bringing criminal charges against a sitting president.
Tuesday's hearings revealed that Hur is a straightforward prosecutor, much like the prominent career Justice Department officials with whom we have both worked. Hur stated in his opening statement that he would “refrain from speculating or commenting on areas outside the scope of the investigation.” He stuck to that throughout the hearing, repeatedly referring to his written report from February 2024 and rejecting attempts to force him to say something more damaging about Biden or Trump.
Curiously, some congressional Democrats decided to attack Hur's integrity even though he had refused to press charges against their party leader. Rep. Hank Johnson, D-Ga., accused Hur of launching an intentionally partisan attack: “He used his report to trash and smear President Biden…and he knew that would play into the Republican narrative that the president “He is not fit for office.” because he is senile.” (Hur later stated that he did not find Biden senile nor did he use that word in his report.) Johnson also baselessly accused Hur of being a member of the Federalist Society (he is not) and of “doing everything possible to get it. “President Trump was re-elected so that you can be appointed a federal judge or perhaps another position in the Department of Justice.”
Things went downhill from there.
SCHIFF FALLS OUT WITH HUR IN HOT EXCHANGE OVER REPORT THAT 'MISSING' OFFERS: 'THAT DIDN'T HAPPEN'
California Democratic Reps. Adam Schiff (currently running to replace the late Sen. Dianne Feinstein) and Eric Swalwell attacked Hur. Swalwell claimed that Hur described Biden as if he had a “photographic memory” regarding her Wilmington home and asked Hur to commit that she would not seek a role in a possible second Trump administration; Hur refused.
For most Americans, the important question is not whether Biden took classified documents home after the end of his vice presidency in 2017, but whether he is mentally fit to continue serving as president.
Rep. Pramila Jayapal, D-Wash., falsely claimed that Hur's report was a “complete exoneration of President Joe Biden”; Hur had to repeatedly state that he had not exonerated him. Rep. Cori Bush, D-Mo., didn't even bother to ask Hur questions, and instead she gave a five-minute speech in which she accused Trump of being the “white supremacist in chief.”
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Republicans made more progress. Chairman Jim Jordan, R-Ohio, had Hur confirm her report's finding that Biden earned $8 million from using classified information to write his November 2017 book, “Promise Me, Dad.” Biden shared that information with her ghostwriter. Matt Gaetz, R-Fla., got Hur to agree that President Biden's repeated claim that she “never shared” any of the classified documents was inaccurate. Rep. Kevin Kiley, R-Calif., managed to persuade Hur to agree that a reasonable jury could have convicted Biden and that Biden's actions risked seriously harming national security.
But Republican members failed to explore the most important area to question. While the Department of Justice released the transcript of the interview, only Hur's personal testimony could allow the American public to truly understand President Biden's mental fitness. Committee members did not require Hur to address, for example, Biden's demeanor, alertness, memory, truthfulness and general mental state.
Republican members did not closely follow up on Hur's conclusion, in his report, that Biden's responses were sometimes “not credible.” Hur could have been asked to explain exactly which of his observations and Biden's responses led him to believe a jury might not convict Biden, and whether the Justice Department could refute those arguments at trial. They could have asked Hur why he didn't focus on the classified documents in Biden's possession that were from his days in the Senate; senators cannot remove such documents or any notes about them from the SCIF, and therefore Biden knowingly and unfairly removed and withheld those classified documents.
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Members of the House Judiciary Committee could also have delved into the interview transcripts. The transcript confirmed that Biden did not remember when he was vice president or when Trump was elected.
He confirmed that Biden himself had raised his son, Beau, and then incorrectly claimed that 2017-2018 was the “time period” in which “my son [Beau] Beau Biden was deployed to Iraq from 2008 to 2009 as a member of the Delaware National Guard, and tragically died of brain cancer on May 30, 2015.
The transcript shows that President Biden responded to Hur's questions with “I don't know,” “I don't remember” or “I have no idea” more than 100 times and couldn't remember what a fax machine was.
Was Biden angry? Obstructive? Did she honestly not remember him or was she just repeating a learned phrase when he was in trouble? Was Biden's tendency to immerse himself in nostalgic stories due to his age or mental decline, or was it evasive and/or obstructive?
Congress should seriously consider exploring these issues further. President Jordan has already taken the next step by demanding that the Department of Justice turn over all audio recordings and transcripts of the interviews. With Biden essentially clinching the Democratic Party nomination and Trump on the verge of securing the Republican nomination, the House Judiciary Committee owes it to the American public to reveal information about whether the incumbent is mentally fit for a second term.
John Shu is a legal scholar and commentator who served in the administrations of Presidents George HW Bush and George W. Bush.
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