Law Professors Slam Press for Distorting Biden Document Report

Upon the release of Special Counsel Robert Hur's report, the media uniformly fastened on the page 1 sentence,

"President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen."

This did not rise to the level of prosecution because, said the report,

"Mr. Biden would present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning elderly man with a poor memory."

Andrew Weissmann and Ryan Goodman, law professors at New York University, found the press coverage so shoddy that they wrote a 4,300-word report of their own on Hur's 382-page effort to show, as Weissman put it in an interview, "the reliable laziness of most of the American news media".

The media left that page 1 sentence hanging, as did Hur, and didn't make it to page 6 where he said there are “innocent explanations” for the retention of documents that the report “cannot refute.” The Goodman/Weissmann report says, "Unrefuted innocent explanations are the sine qua non of not just a case that does not meet the standard for criminal prosecution – it means innocence."

The prosecutorial norm is, if you don't have a case, you say nothing. But Hur was charged by Attorney General Merrick Garland with writing a report. Hur, a Republican chosen by Garland so he wouldn't be accused of protecting his boss, when he found nothing to charge Biden with, indulged in what Washington Monthly calls "prosecutorial abuse", salting the report with a number of personal comments about the president's mental acuity that were widely, and only mildly, labeled "inappropriate" and "gratuitous". Biden’s lawyers "exchanged confrontational letters with top Justice Department officials before and after last week’s explosive report", says The Washington Post, contending that Hur’s comments “openly, obviously, and blatantly violate Department policy and practice.” But unlike Trump's attorney general, Bill Barr, who stepped in front of the Robert Mueller's report two weeks before its redacted version was released to the public, characterizing it as virtually exonerating Trump of Russian contacts, Garland did nothing to offset Hur's remarks. Hur's conduct in an election years inescapably brought to mind James Comey announcements weeks before the 2016 election that the FBI was investigating a Hillary Clinton aide's e-mail that is thought to have cost her the presidency.

Republicans will quote Hur's damaging comments from now to November. Donald Trump said, “You know, look, if he’s not going to be charged, that’s up to them. But then I should not be charged,” as if there are no differences between the two documents cases.

Weissmann appears around the clock on MSNBC as a legal analyst offering commentary on the various Trump cases at a depth one does not find in the media. He had been the lead prosecutor on the Mueller investigation so is especially attuned to the proper conduct of a special counsel. Goodman is editor of the web publication, "Just Security". They combed through the Hur report and pulled an unending skein of excerpts that led to Hur's irrefutable innocence. Here's a sampling that hints at the interior contents of the report:

 “In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute.”
 "We cannot show that Mr. Biden reviewed the binders after his vice presidency or knew the classified documents were inside."
 "The cover of one binder was marked unclassified, the other had no classification marking, and we cannot show that Mr. Biden reviewed the binders after his vice presidency or knew the classified documents were inside."
  "The evidence does not suggest either that Mr. Biden retained the classified documents inside them willfully, or that the documents contain national defense information."
 "Documents were eventually found in Mr. Biden’s Delaware garage-in a badly damaged box surrounded by household detritus-suggests the documents might have been forgotten."
  "The evidence suggests that the marked classified documents found at the Penn Biden Center were sent and kept there by mistake.”
  "FBI agents identified and recovered just over a dozen marked classified documents in Mr. Biden’s Senate-era papers housed at the University of Delaware. Almost all of these documents predate the Senate’s establishment of rules for the tracking and handling of classified information."
  "After more than forty years in the highest ranks of government, he was accustomed to having staff members attend to the details of handling, storing, and retrieving classified documents."

It infuriated Messrs Weissmann and Goodman that even the most exalted media institutions showed no effort to go through the report to discover that Hur dismissed one after another after another instance of an inability to show willful retention or even conscious realization by Biden that he had classified documents. Knowing that would have inhibited The Wall Street Journal from fallaciously writing, "Biden willfully retained and disclosed to a ghostwriter classified materials" and shared "notebooks with the writer, Mark Zwonitzer, including reading aloud from classified entries at least three times." They never read or chose to ignore Hur saying,

"The memo concerned deliberations from more than seven years earlier about the Afghanistan troop surge, and in the intervening years those deliberations had been widely discussed in public."

Biden viewed the hand-written notecards and notebooks — compilations of memos and mementos that Biden kept as a journal of his days as vice-president — were his own personal property: "personal records", much as presidents and vice-presidents had kept before him. Three books came of Reagan's notes, for example. Much more arresting for their readers was the Journal quoting Alex Pfeiffer, a spokesman for MAGA Inc, a Trump super PAC, who said, "If you’re too senile to stand trial, then you’re too senile to be president." and to compile Biden's memory lapses that Hur had catalogued. The Journal's editorial page called it "Biden’s Doddering Document Defense" and likened it to mobster Vincent Gigante attending his arraignment in pajamas and bathrobe in order to claim mental impairment. Top drawer journalism.

The New York Times headline read "Biden Cleared in Documents Case; Report Raises Concerns About His Memory". A second story tagged "News Analysis" was headed "Special Counsel’s Report Puts Biden’s Age and Memory in the Spotlight". With that you have the austere paper of record, so-called, making the 382-page report not about document retention, but about Biden's memory. The Times focused, as we saw the Journal do, on Biden leaving his vice presidency "with classified documents about Afghanistan" in notebooks and handwritten notecards without looking deeper to find that Hur called them obsolete personal notes. The article leaves us with that false impression, then immediately shifts to Biden "unable to remember key dates of his time in the Obama White House — or even precisely when his son Beau had died."

The second Times article is about only age and memory, and to the extent of featuring the most politically biased item of all: Hur writing that the evidence…

"does not establish Mr. Biden’s guilt beyond a reasonable doubt” and "It would be difficult to convince a jury that they should convict him — by then a former president well into his 80s — of a serious felony that requires a mental state of willfulness."

He's guilty, you see, rescued by a little reasonable doubt but a compassionate jury won't convict the old boy, so Hur didn't bring charges. The Times went for that bait and so did the Journal's editorial that said "Biden's mental frailty is one reason Mr. Hur offered for not presenting the President's document-mishandling as a criminal offense before a jury" whereas the innards of Hur's report says no case is why no indictment, and even arrives at an unlikely word for a prosecutor, "innocent".