Prosecutor faces political glare after Biden report

Special Counsel Robert Hur placed a spotlight on US President Joe Biden’s biggest political weakness – his age – by describing him as “an elderly man with a poor memory” who had difficulty recalling of key milestones in his own life.

On Friday, as the president’s team went on the offensive to attack Mr Hur’s report – the result of a year-long inquiry into Mr Biden’s handling of classified files – Vice-President Kamala Harris accused the special counsel of being “clearly politically motivated”.

A White House spokesman said the report was “inappropriate” and suggested legal experts held the same view.

Some former federal prosecutors and attorneys told the BBC that it was not typical for prosecutors to include highly personal details in these kinds of cases.

But others said Mr Hur – a Republican who was tapped for this role by Mr Biden’s own attorney general – was justified in commenting on the president’s memory and age in explaining his decision not to prosecute him for keeping classified documents.

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Many emphasised the challenge for special counsels to both investigate sensitive issues and explain their ultimate conclusions to the public – a high bar made even harder when the subject is the sitting president on the verge of an election.

In his report, released on Thursday, Mr Hur found Mr Biden, 81, had “willfully” retained classified files after leaving the vice-presidency in 2017.

But he said he would struggle to secure a conviction because of how Mr Biden would come across to jurors given his age and demeanour.

In one passage, Mr Hur wrote that Mr Biden’s recall of certain events was “significantly limited”. In another, he provided a pointed example, writing that Mr Biden did not remember “even within several years when his son Beau died”.

Steven Tyrell, a corporate attorney and former chief of the US justice department’s fraud department, said he believed the level of detail Mr Hur included in his lengthy report was justified.

“It is very important for a special counsel to articulate the basis for any charging decision,” he said.

“If, as seems to be the case, the president’s mental state and acuity were considered important in determining his intent, then Special Counsel Hur is to be commended for including that.”

Unfortunately for Mr Biden, the precise details were at times damning for a political candidate already fighting criticism over his advanced age.

Some experts told the BBC that some of these details – especially the references to his son’s death – were not strictly necessary.

“Some of the examples were telling and justifiably included,” said Ty Cobb, former White House counsel under Donald Trump.

“But some of them gave me great pause.”

Mr Cobb, like many of the lawyers who spoke to the BBC, stressed he had great respect for Mr Hur.

“But I think it might have been better here to simply say that the president would have been a sympathetic defendant rather than go into the memory issues at the level that they did,” he said.

Former US assistant attorney Renato Mariotti went further, saying the amount of detail regarding Mr Biden’s memory represented “poor judgement”.

“Prosecutors are supposed to be fair in how they handle people they are investigating, and I don’t think he [Mr Hur] was here,” he said.

The experts who spoke to the BBC mostly agreed that special counsels are usually aware of the political reaction their report could ignite, though it should not change any findings.

That may have been no more true than for Mr Hur, who released the findings of this investigation just nine months before November’s presidential election. Mr Biden is running for a second term.

It is a stressful position, said Seth DuCharme, a former federal prosecutor who held senior posts at the justice department during the Trump administration.

“You look at it, and you probably breathe a heavy sigh, and you go: ‘No matter what I say, or even if I’ve done my best, the reality of the situation is that somebody’s gonna go nuts over this,'” he said.

“‘And it may have real collateral political consequences. But do I stand by what I’ve said?'”

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