1. ‘I did not exonerate him.’
REP. PRAMILA JAYAPAL (D-Wash.): You exonerated him.
HUR: I did not exonerate him. That word does not appear in the report, Congresswoman.
This was Hur’s most memorable statement, in no small part because so many of his other answers were forgettable. The prosecutor’s declaration came in an exchange with Rep. Pramila Jayapal, a Washington State Democrat who argued Hur did, in fact, exonerate the president. Hur took issue with that.
As a general matter, prosecutors are often loathe to publicly exonerate someone they investigated. In Hur’s case, he said he found some evidence of willful mishandling of classified information by Biden, but not enough evidence to prove it to a jury beyond a reasonable doubt. Critical legal distinctions like that rarely fare well in congressional hearings.
Hur’s declaration had echoes of a past special counsel, Robert S. Mueller III, who made a similar point after closing his investigation of Donald Trump: that he was not exonerating the president.
2. Nobody likes a former special counsel
CHAIRMAN JIM JORDAN (R-Ohio): Mr. Hur are you opposed to the U.S. Congress having access to the audiotapes of the people you interviewed during your investigation?
HUR: Chairman, I am not in a position to articulate an opinion one way or the other. That is not really up to me.
The arrival of a special counsel in Washington is exciting — Democrats and Republicans parade through news coverage, reveling in months or even years of investigation, speculation, and recrimination. The last three special counsels, however, have left town with a proverbial “kick me” sign on their backs.
On Tuesday, Democrats and Republicans agreed on very little except for their dissatisfaction with Hur’s answers, as he repeatedly insisted he would not speak beyond his report’s findings. Whether the prosecutor before the committee is Hur, Mueller, or John Durham — who examined the FBI investigation into Russian interference in the 2016 United States election — special counsels are not exactly hostile witnesses, but neither are they particularly friendly or cooperative. Most of Hur’s answers simply referred to what was in his report.
Democrats wanted Hur to talk about why Trump’s alleged conduct with classified documents at his Mar-a-Lago home and private club was far worse than Biden’s. Republicans wanted him to admit that he believed Biden had committed crimes but couldn’t prove it. Hur largely deflected, leaving neither side satisfied.
3. Facts are stubborn things, but politicians are more stubborn
REP. TOM TIFFANY (R-Wisc.): So I want to thank you for the work that you did as far as you could. But unfortunately, you are part of the Praetorian guard that guards the swamp out here in Washington, D.C., protecting the elites. And Joe Biden is part of that company of the elites.
Over more than four hours, Hur repeatedly tried to steer the questions back to the facts he uncovered and his legal reasoning for not seeking charges. The politicians weren’t having it.
Part of Hur’s explanation was that Biden’s notebooks, found in his home, were in some ways more problematic than the official government documents with classified markings — because those notebooks contained national defense information, and he read from the notebooks to his ghostwriter. But even in the case of the notebooks, Hur said, Biden had reasonable defense arguments to make, based on the practices of past presidents like Ronald Reagan, that the notebooks were his property, not the government’s.
HUR: Sir, I’m not here to express any opinions with respect to a pending case against another defendant.
Democrats and Republicans did agree on one thing: the hearing about Biden’s classified documents was really about Trump’s classified documents. Democrats tried to draw Hur into going beyond his report and explain exactly why Trump’s conduct at Mar-a-Lago — for which he has been charged with illegally retaining national defense information and obstructing government efforts to retrieve it — was much more egregious than anything Biden did.
Republicans, particularly committee chairman Jordan, tried to get Hur to say that his findings meant Trump should also not have been charged.
5. Hur’s weakest moment
REP. ADAM SCHIFF (D-Calif): You understood your report would be public, right?
HUR: I understood based on comments that the Attorney General had made that he had committed to make as much of my report public as consistent with legal policy and legal requirements.
SCHIFF: And you could have chosen just to comment on the president’s particular recall vis-a-vis a document or a set of documents. But you decided to go further and make a generalized statement about his memory, didn’t you?
Schiff dug into Hur and would not let go on the question of Hur’s decision to describe Biden as an elderly man with a poor memory. Schiff said Hur had to know that his characterization would become a political baseball bat with which to clobber the president in an election year.
Hur defended himself by insisting the report was supposed to be “confidential” according to Justice Department regulations — which is technically correct but flies in the face of recent, and very public, special counsel reports from Mueller and Durham.
Schiff gave no credence to Hur’s claim that he expected the report would be confidential, saying no prosecutor with his track record could be so naive.
Hur stuck to his guns but was not particularly convincing, all the more so since his defense was delivered while testifying before a packed congressional hearing that was being broadcast and livestreamed on multiple networks and news sites.
