Special counsel Robert Hur hit Democrats with a gut punch on Thursday: He wouldn’t be bringing charges against Joe Biden, not because he didn’t mishandle classified documents, but because the 81-year-old president presented himself as an “elderly man with a poor memory” who a jury would find hard to convict.
“They were really worried about this report,” one source familiar with White House discussions told NOTUS. “I guess I know why now.”
Privately, Democratic officials and Biden allies frantically traded text messages, worried about how bad the news was.
Until the report hit, national Democrats were busy celebrating a triumphant week as Republican disorganization and infighting reached a true peak. Many House Democrats, in Virginia at their annual retreat, found out about the report mere minutes before the president was set to address them (others found out as Biden started talking, one lawmaker told NOTUS). Most work came to a grinding halt when the report dropped.
“Oh, wow, ok,” one senior Democratic strategist texted mid-conversation about something else entirely as the report dropped. The damaging report thrust what may be Biden’s biggest weakness back into the political conversation: his age.
Publicly, Biden addressed the memory-lapse allegations, first telling House Democrats in livestreamed remarks: “In fact, I was so determined to get the special counsel what they needed, I went for a five-hour in-person interview over two days of October — the 8th and 9th — even though Israel had just been attacked by Hamas on the 7th. I was in the middle of handling an international crisis,” almost an exact verbate from a paper statement released by the White House a half an hour earlier.
Biden added matter-of-factly, “Bottom line is the special counsel in my case decided against moving forward on any charges. This matter is now closed.”
That may be more of a hopeful statement than a definitive one.
“Yes, it will be a problem,” going forward, the source said.
Taking press questions later in rare evening remarks, Biden was furious, sparring with reporters and said he was the most qualified man to be president. His memory, he said, was “fine.”
“I am well-meaning, and I’m an elderly man and I know what the hell I am doing,” he said.
Biden allies quickly sought to spin the report, focusing on the conclusion of no charges — and not the multitude of references to Biden’s advanced age and diminished capacity at 81 years old.
“Let’s take the conclusion, not the political shots,” Jim Messina, a Biden campaign surrogate and former campaign manager for then-President Obama, told NOTUS.
And they trained their fire on Hur, casting him as a Republican agent giving fodder to Trump.
“I think this is a Republican who can’t find a way to charge the guy he wants to charge so he takes a bunch of cheap political shots. And I think it should be seen as a partisan document,” Messina said.
“Robert Hur clearly decided to go down the Jim Comey path of filling his report absolving Biden of criminal activity with ad hominem attacks,” tweeted Tommy Vietor, a former top Obama aide and co-host of the Democratic-friendly podcast Pod Save America. Vietor added that Hur didn’t have to “speculate on what conclusion a fictitious jury might have.”
On social media, some Biden aides were quick to point out that former President Trump told prosecutors during his own special investigation over classified documents (which ended with charges — unlike Biden) that he did not remember details from his presidency.
Trump, too, has mixed up political rivals’ names during public rallies, like calling Republican candidate Nikki Haley Nancy Pelosi when discussing Jan. 6 and calling Biden former President Obama. And Trump was unable to recall what years he served as president, during one of his multiple trials.
To reporters, Biden ally Sen. Richard Blumenthal (a 77-year-old politician) said, “There’s certainly no crime in being a well-meaning elderly man.”
Even before the report put a glaring spotlight on it, Biden’s age and mental sharpness has been a part of the national conversation. Every six weeks, an outlet would publish a scathing report on “Democrats’ fears that Biden is too old,” restarting the conversation. Twice this week Biden mixed up the names of long-dead European politicians with living ones, while recalling conversations while in office. An NBC News poll conducted late January found that 76% of voters are concerned about Biden’s mental and physical health, compared to only 61% who shared the same concerns about former President Donald Trump.
Democrats also insisted Thursday that the age problem was the president’s problem, not the party’s problem. Abortion is still no longer a constitutional right, the GOP’s border deal meltdown and infighting is still going on and fealty to Donald Trump is still something most Republican candidates have done — all things that Democrats say remain advantages for them, just as they were before.
White House counsel said the report’s references to Biden’s memory were “entirely superfluous” and “inflammatory.” Faced with questions about Biden’s mental acuity in the past, aides, allies and even some Republicans have said that Biden remains sharp and able to carry out his duties as president, in both private meetings with staff and important meetings with world leaders.
But Hur’s report included several references to Biden’s advanced age and capacity at his age to retain pertinent information that some would consider necessary to be president of the United States.
“In his interview with our office, Mr. Biden’s memory was worse,” Hur wrote on page 208 of the 300-plus document. “He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (“if it was 2013 — when did I stop being vice president?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still vice president?”). He did not remember, even within several years, when his son Beau died.”
In a race where Trump and Biden are on the ballot, either winner will be the oldest elected president. Hur’s report doesn’t change that fact, no matter what the Republicans try to do with it.
“I think that voters are just gonna say, you know, they’re both old and that’s just kind of what it is,” Messina said.
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Jasmine Wright and Evan McMorris-Santoro are reporters at NOTUS.