Special Counsel’s Report Puts Biden’s Age Center Stage

Happy Friday! For all you cable-cutters frustrated by how hard it is to view live sports, several media giants would like to suggest … cable, but just for sports. Disney, Fox, and Warner Bros. Discovery are planning to combine their sports channels to give you a streaming service that is basically the thing you canceled in the first place. Revolutionary!

Quick Hits: Today’s Top Stories

• Ukrainian President Volodymyr Zelensky on Thursday replaced Gen. Valerii Zaluzhnyi, commander in chief of the nation’s military, following months of reported tension between the two leaders as Ukraine’s war against Russia trudges toward its second anniversary. “I am grateful to General Zaluzhnyi for two years of defense,” Zelensky tweeted yesterday. “I appreciate every victory we have achieved together, thanks to all the Ukrainian warriors who are heroically carrying this war on their shoulders. We candidly discussed issues in the army that require change. Urgent change.” Zaluzhnyi will be replaced by Gen. Oleksandr Syrskyi, who has led Ukraine’s ground forces.
• German Chancellor Olaf Scholz urged Western allies to provide more aid to Ukraine on Thursday, and met with U.S. lawmakers last night to discuss continued support for the war-torn country. He is set to meet with President Joe Biden today.
• U.S. military officials on Thursday confirmed the deaths of the five Marines who were onboard a helicopter that crashed outside of San Diego in rough weather conditions. The aircraft went missing on Tuesday night during an attempt to return to Marine Corps Air Station Miramar in San Diego after a training exercise. An investigation into the crash and a mission to recover the soldiers’ remains are underway.
• The Supreme Court heard oral arguments Thursday to decide whether Colorado may remove former President Donald Trump from the ballot under Section 3 of the 14th Amendment, and the justices appeared to be skeptical of the state’s ability to disqualify Trump. “I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” said Justice Elena Kagan, appointed by former President Barack Obama. Several justices considered the consequences of upholding Colorado’s decision, including the possibility that different states could remove candidates from the ballot in retaliation—a scenario Justice Samuel Alito called an “unmanageable situation.” The justices did not ask either side whether Trump had engaged in insurrection.
• Special counsel Robert Hur wrote that President Joe Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen” in a report released on Thursday, but recommended no criminal charges. The nearly 400-page document, the result of a yearlong investigation into documents found in Biden’s Delaware home and private D.C. offices, also called into question the president’s memory, pointing out numerous instances where Biden had problems recollecting dates and details. “We have also 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,” the report stated.
• The Senate voted 67-32 on Thursday to advance a $95 billion foreign-aid package for Ukraine, Israel, and the Indo-Pacific—but missing any border security provisions—with 16 Republicans joining Democrats to pave the way for amendments to the bill and an eventual vote. A final vote is likely days away, and it’s not clear whether or when House Speaker Mike Johnson will bring the package to the House floor for a vote.
• The Federal Communications Commission on Thursday banned the use of artificial intelligence-generated voices in unsolicited robocalls, saying in a unanimous ruling that using AI in such calls is illegal under the 1991 Telephone Consumer Protection Act. The ruling comes after an incident last month in which New Hampshire voters received a call featuring an AI-generated copy of President Joe Biden’s voice encouraging them to skip the Democratic primary. 
• Rep. Cathy McMorris Rogers of Washington, chairwoman of the powerful House Energy and Commerce committee, said Thursday she will not seek reelection, potentially forgoing another appointment as chair of that committee. She is the third committee chair to decide to announce his or her retirement this Congress, following Financial Services Chairman Patrick McHenry of North Carolina and Appropriations Chairwoman Kay Granger of Texas. 

A ‘Well-Meaning, Elderly Man With a Poor Memory’

That a yearlong investigation into President Joe Biden’s handling of sensitive and classified documents ended with a recommendation against criminal charges should theoretically have been cause for celebration in the White House—but the reasoning Special Counsel Robert Hur provided for not pursuing charges instead triggered panic that quickly rippled through Democratic circles. Detailing multiple instances of the president’s poor memory, Hur concluded that it “would be difficult to convince a jury that they should convict [Biden] … of a serious felony that requires a mental state of willfulness.”

The bombshell report released Thursday, which summarized an investigation into boxes of documents originating from Biden’s time in the Senate as well as his vice presidency, found that the president “willfully retained and disclosed classified materials” and shared some of that information with a ghostwriter who was helping to draft his 2017 memoir. Hur’s report did make clear that Biden willingly participated in each step of the investigation, and it found that there was not enough evidence to convict the president of wrongdoing. But Hur seemed to believe that Biden’s age and mental state—more than a lack of evidence—stood as the greatest impediment to a possible jury conviction. Twice in the report, Hur called Biden “a sympathetic, well-meaning, elderly man with a poor memory”—echoing the concerns of a vast majority of voters about the president’s mental ability to handle a second term.

Attorney General Merrick Garland appointed Hur—who served in former President Donald Trump’s Department of Justice—in January 2023, tasking him with investigating the president after classified documents were found in Biden’s home in Delaware as well as his private offices in Washington, D.C. According to the report,  the documents included both classified and top-secret materials, including handwritten notes and memos sent to former President Barack Obama detailing Biden’s opposition to sending additional troops to Afghanistan.

Hur’s task was particularly fraught politically given Trump’s own alleged retention and mishandling of classified material—behavior for which he would eventually be indicted. But whereas Trump (allegedly) obfuscated and deceived government officials upon the discovery of the material, Biden and his team cooperated. As we wrote when Hur was appointed last year: 

To date, there’s no public evidence Biden’s team resisted returning any classified documents to proper authorities—once they were discovered—as former President Donald Trump is alleged to have done, leading White House officials to accuse Republicans of hypocrisy over their reluctance to investigate Trump and enthusiasm to examine Biden. But there’s still a lot we don’t know about this story: whether the Biden papers’ lax handling created national security vulnerabilities, for example, or who had access to them while they sat unsecured for six years, as Biden’s team said yesterday he doesn’t keep a visitors log for his Wilmington home. We also don’t know how the documents ended up unsecured, a question likely at the top of Hur’s to-do list.

Based on Hur’s final report, it appears the answer to several of those questions are deeply unflattering for the current president. “Mr. Biden has long seen himself as a historic figure,” Hur wrote. “He believed his record during decades in the Senate made him worthy of the presidency, and he collected papers and artifacts related to significant issues and events in his career. He used these materials to write memoirs published in 2007 and 2017, to document his legacy, and to cite as evidence that he was a man of presidential timber.” But Hur also made clear that there was a categorical difference between what Biden and Trump are alleged to have done:

Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would clearly establish not only Mr. Trump’s willfulness but also serious aggravating facts. 

Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. According to the indictment , he not only refused to return the documents for months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it. In contrast, Mr. Biden alerted authorities, turned in classified documents to the National Archives and the Department of Justice in 2022 and 2023, consented to the search of multiple locations including his homes, permitted the seizure and review of handwritten notebooks he believed to be his personal property, and in numerous other ways cooperated with the investigation.

The report—and the explicit callout of Trump’s conduct—should have been a slam dunk for Team Biden, which said the “matter is now closed” in reference to questions over Biden’s handling of the documents. Instead, however, repeated references to Biden’s age and memory derailed the victory lap, putting the White House on defense.

Hur’s report described the process of interviewing Biden as “painfully slow,” and listed numerous instances of the president’s inability to remember key facts and dates hindering the process—not maliciously, but as a side effect of his advanced age.

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. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he “had a real difference” of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo [regarding Afghanistan] to President Obama.

Biden and his allies pushed back forcefully against these allegations, blaming in part the fact that some interviews had occurred on October 8 and 9, 2023—in the immediate aftermath of Hamas’ attack on Israel, an international crisis that had taken up all of Biden’s attention. Biden’s personal attorney, Bob Bauer, argued Hur broke with DOJ “regulations and norms” by calling undue attention to Biden’s memory in his report. “We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate,” Biden’s lawyers wrote in a letter included as an appendix to the report. “The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events.” The Biden campaign’s messaging has been quick to highlight that Special Counsel Hur is a Republican.

Asked about the report last night, Democratic Sen. Chris Coons—a close Biden ally—told reporters it “went a little far” and “doesn’t reflect the man who I was with twice last weekend.” But several congressional Democrats were reportedly more blunt when granted anonymity by Axios. One described it as “obviously concerning”; another just said “oy vey.” A new NBC News poll published this week revealed that 76 percent of voters—including 54 percent of Democrats—have concerns about Biden “not having the necessary mental and physical health to be president for a second term.”

Republicans tapped into those concerns in the wake of Thursday’s bombshell. “Alarming,” House Majority Whip Tom Emmer tweeted. “It’s clear @joebiden does not have the cognitive ability to be President.” Sen. Josh Hawley argued it was “time for the 25th Amendment.” Trump, meanwhile, argued Biden “shouldn’t be allowed to get away with this” and decried what he described as a “TWO-TIERED SYSTEM OF JUSTICE AND SELECTIVE PROSECUTION.”

A desire to push back against these allegations of diminished mental capacity—particularly after forgoing the president’s typical pre-Super Bowl interview for the second year in a row—likely drove the White House’s decision to schedule a last-minute press conference for Biden on Thursday evening. “There’s some attention paid to some language in the report about my recollection of events,” a visibly angry Biden said during the prime-time event meant to refute accusations of his declining mental ability. “There’s even reference that I don’t remember when my son died. How in the hell dare he raise that?” The president then took questions, and at one point poked fun at one of the lines in the report. “I’m well-meaning, and I’m an elderly man, and I know what the hell I’m doing,” he said. As he exited the stage, however, a reporter shouted a question regarding the ongoing negotiations to free the remaining hostages in Gaza. Biden returned to address the final question—and confused Mexico with Egypt in his answer.

“As you know, initially, the president of Mexico, el-Sisi did not want to open up the gate to allow humanitarian material to get in,” said Biden—who in recent days has mixed up multiple world leaders—in reference to the leader of Egypt, Abdel Fattah el-Sisi.

Worth Your Time

• As millions of Americans prepare to tune in to the Super Bowl this Sunday, we must once again give thanks to football’s greatest MVP: the yellow line. “At least one thing in football is not complicated—that is, if you’re watching on TV: the yellow first-down marker,” Jacob Stern wrote in The Atlantic. “The virtual line, convincingly projected onto the field during every major football telecast through augmented reality, makes the sport immediately more digestible.” Stern goes on to recount the history of the handy projection, which he says “can quite plausibly be understood as the grandfather of the new Apple Vision Pro and other such goggles. The first-down marker was one of the first kinds of augmented-reality technology that spectators had ever encountered, and to this day, it is perhaps the most widely viewed use of it ever.”

Presented Without Comment 

The Daily Beast: Elise Stefanik Takes Her Jan. 6 Rhetoric a Step Further

CNN’s Kaitlan Collins: Had you been vice president on January 6, 2021, what would you have done? 

Rep. Elise Stefanik: I stood up for the Constitution, I believe it was—

Collins: No, what would you have done if you were vice president?

Stefanik: I would not have done what Mike Pence did.

Also Presented Without Comment 

Reason: Hawaii’s Supreme Court Insists There Is No Individual Right to Arms

From the ruling: “The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities.”

Also Also Presented Without Comment 

House Republican Leadership Statement on Special Counsel Report: “A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office.”

Toeing the Company Line

• In the newsletters: Nick pondered a scenario (🔒) in which the Supreme Court did disqualify former President Donald Trump from running for reelection.
• On the podcasts: On today’s Dispatch Podcast, Sarah is joined by Steve, Mike, and John to discuss the collapse of the bipartisan immigration deal and the D.C. Circuit Court of Appeals’ rejection of Donald Trump’s claims of presidential immunity. And on a bonus episode of Advisory Opinions, Sarah and David cover the oral argument at the Supreme Court regarding the Colorado Supreme Court’s decision to block Trump from the ballot in the state.
• On the site today: Beth Akers argues that declining college enrollment isn’t necessarily a bad thing in the long run.

Let Us Know

Do you think President Biden should opt against running for reelection given concerns about his age? If he did, do you think Vice President Kamala Harris should be his replacement?