How Old is Too Old?

By Brent E. Zepke, Esq.

The Special Counsel Report (Part 1)

On February 5, 2024, Special Counsel Robert K. Hur sent the U.S. Attorney General Merrick Garland his report entitled “Report on the Investigation Into Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Biden Center and the Delaware Private Residence of President Joseph R. Biden, Jr.  

Hur’s cover letter to Garland provided that “At the request of the White House Counsel and personal counsel to President Biden (collectively “counsel”), I agreed, with certain conditions including nondisclosure, to allow counsel to review a draft of the report…Counsel reviewed a draft of the report on February 3 and 4, 2024.”

Note that this report was edited by the above cited experts after being written by Robert Hur – the expert selected by Merrick Garland – whose expertise was developed from attending Harvard, Cambridge, and Stanford, as a clerk for Ninth Circuit Judge Alex Kosinski and later Justice William Rehnquist; as the U.S. Attorney for Maryland; and as having a variety of senior leadership positions in the DOJ.

A Select Choice of Words

The message is that their choice of words is important. 

 Hur’s Report contained so many specific examples that it totaled 345 pages, plus the following appendixes that were so full of examples that they added another 43 pages:

1) Appendix A “Recovered documents”

2) Appendix B “Classified review results for select Notebook Entries and other handwritten material

3) Appendix C “Evidence Items.”

The first sentence of the second paragraph of Hur’s Executive Summary provides “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified material after his vice presidency when he was a private citizen.” Italics were added to Counsel Hur’s Report to indicate the significance of the words selected to describe the activities of President Biden. 

The second paragraph continued, “These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods. FBI agents recovered these materials from the garage, offices, and basement den in Mr. Biden’s Delaware home.”

Even just an outline of Mr. Biden’s violations required 14 pages in the “Executive Summary,” that concluded with the following sentence:   

“We have considered that at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” (Italics were added for emphasis). 

“Well-Meaning” versus “Willfully Retained”

This raises more questions than it answers, such as the meaning of the italicized words:

1) Who is “we”? And what type of training enabled “we” to make this type of conclusion? Does “we” include the White House Counsel and personal counsel to President Biden?

2) “would likely present himself at trial” appears to be a careful choice of words as it does not say he actually has the following traits.

3) “to a jury” recognizes that it should be a question for a jury.

4) “as he did during our interview of him,” again raises the question of who “ours” is and sounds like the same type of conclusion FBI Director Comey used to decline to prosecute Hillary Clinton for destroying her cell phone, which was under subpoena.

5) “sympathetic” as an adjective meaning “you are kind to others and show that you understand their feelings” can be refuted by any of his choice of words in describing Make American Great again (MAGA) followers.

6) “well-meaning” is defined as “having good intentions” and contradicts Hur’s findings that Mr. Biden “willfully retained and disclosed classified material.”

How can “having good intentions” be appropriate for the head of the Senate Foreign Relations Committee, Vice President for eight years, and then a private citizen who ran for the presidency? Certainly, he had at least constructive knowledge that removing and disclosing classified documents and storing them in unsecured places (such as his Virginia and Delaware houses, and the Penn Biden Center) was prohibited, as was permitting access to those documents to persons who do not have security clearances, such as:

a) movers from his Virginia house to his Delaware house;

b) personnel at the U. of Delaware;

c) Hunter Biden;

d) anyone who had access to the Penn Biden Center, which stopped even keeping visitor logs in 2017.

How Old is Too Old?

7) The “elderly man” defense requires that the Special Counsel and Attorney General draw a line between Mr. Biden’s being too “elderly” to prosecute with a birth date of November 20, 1942, and Mr. Trump, not being too elderly with a birth date of June 14, 1946; this raises several questions:

A) Where in-between 1942 and 1946 is the line of demarcation to determine who is “too elderly?” Is it 1943, 44 or 45?

B) Does this mean that everyone born before November 20, 1942, is now ‘too elderly’ to be prosecuted?

C) Or is using the term “elderly” an attempt to avoid using not “cognitively responsible?”

8) “with a poor memory” is defined as lapse of memory, forgetfulness, and is the type of issue that is for a jury to consider. If he does have a “poor memory,” did that cause his actions or was there another reason? And finally, whether a “poor memory” should give him a free pass.

Notice the difference in the tone of the Italicized words between the definitive action verbs used by Special Counsel Hur, and whoever else was included in the “we,” and edited by White House Counsel and President Biden’s personal attorney, in describing President Biden’s actions, and the much softer, vaguer, words this group used to explain why “we” are declining to prosecute.

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