OPINION: Robert Hur’s personal and hurtful jab at Joe Biden

Editor’s note: Norman Eisen, who served as an adviser to House Democrats during the first impeachment of Trump, is a senior fellow at Brookings University and a professor at the University of Minnesota Law School. Richard Painter served as White House Chief Ethics Counsel under President George W. Bush from 2005 to 2007. Joshua Kolb is an attorney and served as law clerk to the Senate Judiciary Committee. The views expressed in this commentary are their own.read more opinions On CNN.

CNN
—

We support Special Counsel Robert Hur’s conclusion that President Joe Biden should not be charged with keeping and sharing classified information, even if his handling of classified materials has been far from exemplary. I agree.

However, we will take exception to comments in Heo’s report that unfairly attack Biden’s age and memory beyond what is necessary for the prosecution’s evaluation. In what is already the report’s most-quoted line, Hoare characterized Biden as a “sympathetic, well-meaning older man with a poor memory.”

This statement and others like it violate the Justice Department’s long-standing principles about what prosecutors can and should say publicly when deciding not to prosecute. Mr. Hsu showed poor judgment in making these comments, which will only exacerbate Mr. Biden’s political flames around his age.

In fact, the Department of Justice’s Federal Prosecution Principles state that “Federal prosecutors should always be sensitive to the privacy and reputational interests of unindicted parties,” and “Prosecutors should be aware of fraud committed by unindicted parties.” “Efforts should be made to avoid unnecessary public mention of conduct.”

The special prosecutor regulations that govern Mr. Huh require him to adhere to this basic principle. This is also included in the American Bar Association’s Prosecution Standards, which state that “a prosecutor may make a public statement explaining why a criminal charge is dismissed or dismissed, but…does not prejudice the interests of the person being investigated.” “You must be careful to do so.” ”

To be sure, this case is unique and complex. Biden is not a normal person. But the President of the United States. And as special prosecutor, Ho is required by Justice Department regulations to write an investigative report that explains either the indictment itself or the decision not to indict. Therefore, Mr. Xu could not remain silent at the end of the investigation.

Indeed, no one doubts that Mr. Xu had a duty to prepare this report and explain the legal and factual reasons why, in his estimation, no criminal charges should be brought.

Like other prosecutors, Mr. Xu had prosecutorial discretion and was responsible for producing a calm and focused report. He was free to discuss the handling of documents in assessing the strength of criminal cases and Biden’s recollection of those documents.

But Mr. Hsu clearly went beyond that to include his thoughts on Mr. Biden’s memory more generally. It is far removed from the documentation; Whether Biden committed a crime or not.

Although it was Attorney General Merrick Garland who officially released the report, Mr. Yes, you should have been able to predict the impact your words would have. he has

The part of the document that has received the most attention in the media, referring to Mr. Biden’s age and mental strength, is particularly damning. That Mr. Xu freely describes Biden as an “old man with a bad memory” sheds little light on the decision to prosecute him.

Biden’s memory of documents is certainly important for the special counsel to look at when assessing the strength of the criminal case. But many of the special counsel’s other comments about the president’s recollections during the five-hour interrogation were unrelated to the investigation.

Perhaps most jarring was Hoare’s point that Biden doesn’t remember when his son Beau died. The subject was far beyond the scope of the investigation. And given the well-known impact that Beau’s death had on Biden, its inclusion was unnecessarily personal and painful, as Biden’s impassioned response Thursday night demonstrated.

Ho’s justification for including this comment about Biden—that these observations were a factor in considering Biden’s legal defense—is also likely misguided. In our view, it is unnecessary to publicly speculate about what legal defenses an individual might have if charged with a crime, or how they might be perceived based on their age or memory ability. . These defenses had nothing to do with assessing whether Biden committed a crime. They were thinking about things that had nothing to do with the evidence in the case.

Additionally, the language Hur uses straddles the line from descriptive to poorly edited. Instead of providing a neutral account of Biden’s recollections, he used provocative language while speculating whether a hypothetical juror would view Biden the same way. However, as lawyers, we know that it is extremely unlikely that a criminal defense attorney will put Mr. Biden on the stand. Citing Biden as a public explanation for not indicting him is absurd, since it is unlikely that jurors will be confronted with what he looks like during deliberations.

Although it is not possible to know what Mr. This is a bad view for both Mr. Xu and the Justice Department.

This reminds us of another shameful episode in the history of the Department of Justice. That was FBI Director James Comey’s public comments in 2016 regarding the investigation into then-Democratic presidential candidate Hillary Clinton’s private email server. Like Mr. Hur, Mr. Comey announced that he would not charge Ms. Clinton with any crime, but he continued to criticize her actions and her judgment.

The inspector general condemned Comey, concluding that his announcements were “inconsistent with department policy and violated long-standing department practices and protocols, including, among other things, criticizing Ms. Clinton’s non-indictment.” (Mr. Comey’s conduct was perhaps even more abhorrent than Mr. Herr’s.) According to the inspector general, he not only opined in Ms. Clinton’s non-prosecution act, but also “usurped the authority of the attorney general.”

Mr. Xu did no such thing and followed proper procedures to conduct an investigation and write a report. But his departure from the prosecutorial standard of not vilifying people who have not been charged is troubling, especially in an election year, and should not become the norm.

In fact, it may be appropriate for the Inspector General to take note of Mr. Heo’s conduct here and investigate whether he may have violated the Hatch Act, which prohibits federal officials from using their official powers to interfere in elections. . The Office of the Special Counsel, which enforces the Hatch Act, may want to investigate this matter, as it did in the aftermath of Comey’s investigation into Clinton.

As it stands, the rules and regulations regarding special prosecutors are too vague and open to potential abuse. Concerns about the ambitions of independent prosecutors go back at least to the prosecutions of Ken Starr and President Bill Clinton in the 1990s.

The rules should be amended to remind special prosecutors of the principles of federal prosecution and caution them to avoid unnecessary derogatory language about unindicted parties. This is especially important during elections, when such statements can influence political outcomes.