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The special counsel who cited Joe Biden’s memory lapses in a bombshell report explaining his decision not to charge the US president over his handling of classified documents defended his findings during a hearing in Congress on Tuesday.
Robert Hur told members of the US House of Representatives judiciary committee that he did not find evidence of wrongdoing by the president “that rose to the level of proof beyond a reasonable doubt”.
He also addressed controversial portions of the report that questioned Biden’s memory, saying he could not determine whether the president had “wilfully” mishandled sensitive material “without assessing the president’s state of mind”.
“For that reason, I had to consider the president’s memory and overall mental state, and how a jury likely would perceive his memory and mental state in a criminal trial,” Hur said.
“The evidence and the president himself put his memory squarely at issue,” he added. “My assessment in the report about the relevance of the president’s memory was necessary and accurate and fair.”
Hur’s testimony comes a month after his 345-page report concluded that Biden had “wilfully retained and disclosed” classified documents, including on military policy, after he left his role as Barack Obama’s vice-president. The material was found in Biden’s private offices and residences, including in the garage of his Delaware home.
His report described Biden as a “well-meaning, elderly man with a poor memory”, who “did not remember when he was vice-president” or “even within several years” when his son Beau had died.
Biden’s political opponents had seized on descriptions of the president’s memory, while critics argued that the comments from Hur — who was picked by US attorney-general Merrick Garland last year to oversee the politically delicate probe into Biden’s handling of classified information — were gratuitous and went beyond the scope of his mandate.
The comments also elicited a strong rebuke from the president, who said his memory was “fine” in a press conference hastily organised hours after the report’s publication.
Tuesday’s hearing often steered away from details of the report, with members of the committee using the opportunity to present partisan defence of either Biden or Donald Trump, the likely nominees in the 2024 presidential election.
Republicans sought to focus on Biden’s conduct and age. Polling has shown widespread concern among voters of both US political parties about Biden’s age and mental acuity. Biden is 81, while Trump, his likely opponent in this year’s general election, is 77.
“Joe Biden broke the law, but because he’s a forgetful old man who would appear sympathetic to a jury, Mr Hur chose not to bring charges,” said Jim Jordan, the committee’s Republican chair.
“There is no doubt that this president does believe he’s above the law,” said Republican Thomas Tiffany.
Democrats shot back with video clips of Trump’s own gaffes, including the ex-president mistakenly calling Viktor Orbán, the Hungarian prime minister, the “leader of Turkey” and failing to recall the years he was married to one of his ex-wives, Marla Maples.
They also accused Hur of making a “political choice” when focusing on Biden’s memory in his report. “You cannot tell me you’re so naive as to think your words would not have created a political firestorm,” said Adam Schiff, a Democrat from California.
Democrat Henry Johnson also accused Hur, a registered Republican, of seeking to curry favour with Trump, who had previously appointed Hur to a stint leading the US attorney’s office in Maryland.
Hur, who last week left the Department of Justice, repeatedly denied the accusations, saying “politics played no part whatsoever in my investigative steps” and that he had no aspirations to seek Trump’s favour.
The committee’s Republicans challenged Hur’s decision not to charge Biden even as Trump faces a federal indictment for mishandling classified government material.
Tom McClintock, a Republican on the committee, said Hur had created a “glaring double standard”. It would be “toxic to the rule of law” if the case involved ordinary citizens, he said, “but the fact that the only person being prosecuted for this offence happens to be the president’s political opponent makes this an unprecedented assault on our democracy”.
Hur’s report had pointed to a difference between the two cases: unlike Biden, Trump resisted handing over the material for months and allegedly lied to authorities.
Democrats on the committee focused on drawing a contrast between Biden and Trump.
Jerrold Nadler, the committee’s top Democrat, told Hur: “The reason why President Biden is not facing a single charge is not because you went easy on him, but because after reviewing 7mn documents and interviewing nearly 150 witnesses including the president himself, you could not prove that he had committed a crime.”
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