The recent release of special counsel Robert Hur’s report on President Joe Biden’s handling of classified information has rekindled debates surrounding special counsels and their reports. These reports are crafted to publicly disclose findings, even if charges are not pursued, sparking discussions on the handling of negative assessments by the Justice Department.
Attorney General Merrick Garland received the final report on Monday and faced decisions on addressing the report’s critical evaluation of the president’s conduct.
The report included language suggesting that a jury might view Biden as an “elderly man with a poor memory.” While Garland had the option to redact characterizations deemed gratuitous or false by the White House, doing so would risk undermining the investigation’s independence and inviting allegations of partisanship.
Justice Department officials note that any information removed would likely become public eventually, emphasizing the challenge of balancing transparency with potential political fallout.
The conclusion of the investigation also raises questions about handling audio recordings of Biden’s interview and other materials. The special counsel’s office recorded the interview with Biden, adding complexity to the decision-making process.
Hur’s report, released on Thursday, immediately triggered attacks on the president regarding his age, a sensitive topic for Biden and a key challenge with voters as he eyes a potential reelection against former President Donald Trump.
Controversy surrounding special counsels has persisted over decades, irrespective of indictment outcomes. Examples include Ken Starr’s investigation of former President Bill Clinton and Robert Mueller’s probe into Trump. The recent twin indictments by Jack Smith involving Trump further contribute to the contentious history of such investigations.
Biden’s legal team accused Hur of violating Justice Department rules that generally discourage the release of negative information about subjects not facing charges. Former Attorney General Eric Holder criticized the report on social media, stating it contained “too many gratuitous remarks” and was inconsistent with DOJ traditions.
However, some officials argue that Hur’s detailed explanation for not charging Biden aligns with Justice Department guidelines for special counsels, emphasizing its relevance to the decision-making process.
Ty Cobb, former White House attorney for Trump during the Mueller investigation, acknowledged the validity of the considerations for not charging Biden. Still, he expressed surprise at the level of detail unless the president’s lawyers argued his “feebleness” to the special counsel’s office.
The Justice Department and Hur’s office declined to comment on the ongoing debate. White House spokesman Ian Sams expressed openness to releasing transcripts from the investigation, subject to a review for classified information, highlighting the potential avenues for transparency.
Additionally, the White House could assert executive privilege over investigative materials, a decision that involves careful consideration given the president’s decision not to assert privilege over the report.