Republicans Are Lying About a Special Counsel Report, Again
Republicans Are Lying About a Special Counsel Report, Again
They’re distorting Robert Hur’s statements about Biden. Hur should correct them.
REPUBLICANS HAVE LAUNCHED a propaganda campaign to deceive the public about Special Counsel Robert Hur. Specifically, they’re claiming that Hur found President Joe Biden cognitively unfit to stand trial for unlawfully retaining classified documents. This is a lie, and Republicans are using the lie to bolster their contention that Biden should be removed from office under the Twenty-fifth Amendment or defeated in this year’s presidential election.
This isn’t the first time the GOP has egregiously misrepresented a special counsel report. In 2019, many Republicans lied about Robert Mueller’s report on the Russia investigation, claiming that Mueller had exonerated Donald Trump. Mueller responded by holding a press conference in which he explicitly refuted the mischaracterization.
That’s exactly what Hur should do now.
REPUBLICANS HAVE OBVIOUSLY SETTLED on a party line. In a Fox News interview on Monday, Sen. Josh Hawley asserted that Hur’s report essentially said of Biden: “I can’t charge him, because he can’t stand trial.” Hawley told viewers that Biden “clearly is not in charge of his mental faculties—so much so, they can’t charge him with a crime. Which means he cannot be president of the United States any longer.” On Tuesday, Sen. Lindsey Graham joined in, alleging that Hur’s report “basically says [Biden] did it, but no jury would convict him, because they don’t think he’s competent.”
At a press conference on Wednesday, House Republicans went all in on this portrayal of the report.
Rep. Elise Stefanik, the chair of the House Republican Conference, said Hur had decided not to prosecute Biden “because of his deteriorating mental state. . . . And the American people know that if someone is mentally unfit to stand trial, they are unfit to serve as commander-in-chief.”
Rep. Ronny Jackson, a physician, claimed that Hur had issued “an objective report . . . saying that he’s [Biden] not cognitively fit to do his job.” And “if you’re not cognitively fit to stand trial or to answer accusations against you, you’re obviously not cognitively fit to be the president, commander-in-chief, and our head of state.”
Rep. Tom Emmer, the Republican whip, said there were “two takeaways from the special counsel’s report,” and the first was: “A man unfit to be held responsible for mishandling classified information has zero business occupying the Oval Office.”
Speaker Mike Johnson said of the report: “A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office.”
These statements and insinuations—that Hur assessed Biden as incompetent, “incapable of being held accountable,” and “not cognitively fit to stand trial”—aren’t just factual assertions. They’re legal assertions. They pretend, falsely, that Hur made a specific prosecutorial judgment.
In its manual for handling criminal cases, the Justice Department sets forth standards, drawn from federal law, for evaluating criminal competence. To be deemed incompetent, a defendant must be “unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.” Another formulation in the manual, taken from a Supreme Court case, says that a competent defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and must have “a rational as well as factual understanding of the proceedings against him."
Nowhere in his report does Hur assert or suggest that Biden is incompetent under any of these standards. He says nothing about Biden’s rationality or understanding. He doesn’t even offer direct judgments of Biden’s ability to recall events. Instead, he uses careful language—“present,” “appear,” “apparent”—to make clear that he’s talking about how Biden would look to a jury.
If Hur thought Biden was unfit to stand trial, he wouldn’t be talking about a jury at all. You don’t get a jury unless you’re being tried.
In the sections of the report that address Biden’s memory problems, Hur’s focus is explicit and narrow. He depicts a scenario in which Biden is already being tried, and the jury is evaluating whether Biden retained classified documents “willfully . . . as the statute requires.” In the report’s most notorious passage—the one in which Hur says 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 concludes that this presentation by Biden would make it “difficult to convince a jury” that Biden had the requisite “mental state of willfulness.”
That’s it. That’s the only context in which Hur suggests that Biden’s bouts of forgetfulness would matter.
HUR ISN’T THE FIRST special counsel to see his report cynically misrepresented. Five years ago, Republicans did the same to Mueller. At that time, Graham and others lied profusely about Mueller’s findings. “Mr. Mueller said there was no evidence of collusion between President Trump or anybody on his campaign with the Russians, period,” Graham told Fox News viewers. In another interview, Graham asserted: “The Mueller report said there was no collusion, no conspiracy. . . . Mueller exonerated the president, in terms of working with the Russians.” In a third interview, Graham declared, “The verdict is in from Mueller: no collusion, no obstruction.”
Four weeks after Graham made those statements, Mueller held a press conference to announce that he was shutting down his investigation. The special counsel could have let the lies pass. Instead, he corrected them. “If we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller told the public. He explained that in reality, based on presidential immunity and other factors, “we concluded that we would not reach a determination one way or the other about whether the president committed a crime.”
Hur, like Mueller, certainly doesn’t want to get into a political fight over how to interpret his report. And he shouldn’t have to. But he does have to correct the black-and-white lie that he made a specific legal judgment. He said nothing about Biden’s competence to stand trial. And he should make that clear.