How Hur Misled the Country on Biden’s Memory

First impressions stick. After a big story hits, the initial conclusions can turn out to be wrong, or partly wrong, but the revisions are not what people remember. They remember the headlines in imposing font, the solemn tone from a presenter, the avalanche of ironic summaries on social media. Political operatives know this, and it’s that indelible impression they want, one that sticks like a greasy fingerprint and that no number of follow-ups or awkward corrections could possibly wipe away.

Five years ago, a partisan political operative with the credibility of a long career in government service misled the public about official documents in order to get Donald Trump the positive spin he wanted in the press. The play worked so well that a special counsel appointed to examine President Joe Biden’s handling of classified documents, Robert Hur, ran it again.

In 2019, then–Attorney General Bill Barr—who would later resign amid Trump’s attempts to suborn the Justice Department into backing his effort to seize power after losing reelection—announced that Special Counsel Robert Mueller had not found sufficient evidence to indict Trump on allegations that he had assisted in a Russian effort to sway the 2016 election and had obstructed an investigation into that effort. Mueller’s investigation led to indictments of several Trump associates, but he later testified that Justice Department policy barred prosecuting a sitting president, and so indicting Trump was not an option. Barr’s summary—which suggested that Trump had been absolved of any crimes—was so misleading that it drew a rebuke not only from Mueller himself but from a federal judge in a public-records lawsuit over material related to the investigation. That judge, Reggie Walton, wrote in 2020 that the discrepancies “cause the court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary.”

[David A. Graham: The Special Counsel’s devastating description of Biden]

As my colleague David Graham wrote at the time, the ploy worked. Trump claimed “total exoneration,” and mainstream outlets blared his innocence in towering headlines. Only later did the public learn that Mueller’s report had found “no criminal conspiracy but considerable links between Donald Trump’s campaign and Russia, and strongly suggested that Trump had obstructed justice.”

Now this same pattern has emerged once again, only instead of working in the president’s favor, it has undermined him. Hur, a former U.S. attorney in the Trump administration, was appointed by Attorney General Merrick Garland to investigate Biden for potential criminal wrongdoing after classified documents were found at his home. (Trump has been indicted on charges that he deliberately mishandled classified documents after storing such documents at his home in Florida and deliberately showing them off to visitors as “highly confidential” and “secret information.”)

In Hur’s own summary of his investigation, he concluded that “no criminal charges are warranted in this matter,” even absent DOJ policy barring prosecution of a sitting president. But that part was not what caught the media’s attention. Rather it was Hur’s characterization of Biden as having memory problems, validating conservative attacks on the president as too old to do the job. The transcripts of Hur’s interviews with Biden, released yesterday by House Democrats, suggest that characterization—politically convenient for Republicans and the Trump campaign—was misleading.  

Sparking alarming headlines about Biden’s mental faculties, Hur had written that 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” and “diminished faculties in advancing age.” As with Barr’s, that conclusion set off a media frenzy in which many mainstream outlets strongly reinforced conservative propaganda that Biden was mentally unfit to serve, a narrative that reverberated until the president’s animated delivery of the State of the Union address last week.

In press coverage following the report, Hur’s phrase was frequently shortened to an “elderly man with a poor memory,” turning the evaluation of a potential legal strategy into something akin to a medical diagnosis. A cacophony of mainstream-media coverage questioning Biden’s age and fitness followed, while conservative politicians and media figures outright declared Biden incapacitated and demanded he be removed from office according to the Twenty-Fifth Amendment, which provides for succession in case a president is “unable to discharge his duties.”

The transcripts of Hur’s interviews with Biden illuminate Hur’s summary as uncharitable at best. As a report in The Washington Post noted, “Biden doesn’t come across as being as absent-minded as Hur has made him out to be.”

Hur wrote that Biden “did not remember, even within several years, when his son Beau died.” Yet the transcript shows Biden remembering the exact day, May 30, after which staffers offer the year—2015—and Biden says, “Was it 2015 he had died?” In another exchange Hur singled out as indicative of Biden’s poor memory, he said Biden mischaracterized the point of view of an Obama-administration official who had opposed a surge of combat troops to the war in Afghanistan, but left out that Biden correctly stated the official’s views in an exchange later that day. The transcript also shows Biden struggling with other dates while answering questions about when he obtained certain documents or in the interval between the Obama and Biden administrations, when he decided to run for president. But as The New York Times reported, “In both instances, Mr. Biden said the wrong year but appeared to recognize that he had misspoken and immediately stopped to seek clarity and orient himself.”

The transcript does not completely refute Hur’s description of Biden’s memory, but it is entirely incompatible with the conservative refrain that Biden has “age-related dementia.” Indeed, both Barr and Hur framed their conclusions with a telltale lawyerly touch that would push the media and the public toward a far broader conclusion about Trump’s supposed innocence or Biden’s alleged decline while allowing them to deny that they had been so explicit.

There’s no question that both Biden and Trump are much older than they used to be. To watch clips of either of them from 20 years ago is to recognize a significant difference. But the transcript shows Biden exactly as he appeared in the State of the Union last week, as someone who has lost a step or two as he’s aged but is fully capable of grasping the politics and policy implications demanded by the presidency. “Mr. Biden went into great detail about many matters, the transcript shows,” the Times reported. “He made jokes over the two days, teasing the prosecutors. And at certain points, he corrected his interrogators when they were the ones who misspoke.” During an exchange about Biden’s home, Hur remarked that Biden had a “photographic understanding and recall of the house,” a remark Hur acknowledged in yesterday’s testimony before the House that he had left out of his original report.

People with serious cognitive decline do not simply have verbal flubs or memory lapses of the sort both campaigns are constantly highlighting on social media. They avoid asking questions they fear might betray their loss of memory; they struggle to recollect the season, the time of day, the state they are currently in. They awkwardly attempt to hide their inability to recall recently relayed information in ways that simply underline its absence. They repeat innocuous statements that they do not realize they made minutes earlier. They pretend to know people they’ve never met and fail to recognize people they’ve known for decades. The late Democratic Senator Dianne Feinstein of California, the clearest recent example of this in politics, was reported to have had incidents such as a meeting at which lawmakers had to “reintroduce themselves to Feinstein multiple times during an interaction that lasted several hours,” as the San Francisco Chronicle reported in 2022.

During his testimony before the House, Hur insisted that “partisan politics had no place whatsoever in my work.” He tried to have it both ways, insisting that his report was accurate while refuting the most uncharitable right-wing characterizations of Biden’s memory. But as legal experts pointed out after the report was released, Hur’s description of Biden’s memory was not a necessary element of his duties, and it is unlikely that someone with as much experience in Washington as Hur would be so naive as to not understand how those phrases would be used politically.

Yet Hur’s report is itself something of a self-inflicted wound for Democrats, a predictable result of their efforts to rebut bad-faith criticism from partisan actors by going out of their way to seem nonpartisan. The age story caught fire in the press, not only because of genuine voter concern over Biden’s age but because this is the sort of superficially nonideological criticism that some reporters feel comfortable repeating in their own words, believing that it illustrates their lack of partisanship to conservative sources and audiences. Coverage of the Hillary Clinton email investigation reached saturation levels in 2016 for similar reasons.

There are more parallels between those stories. Then-President Barack Obama appointed James Comey, a Republican, to run the FBI, in an effort to illustrate his commitment to bipartisanship; Attorney General Garland’s decision to appoint Hur probably had similar intentions. Comey, like Hur, declined to press charges but then broke protocol. In Comey’s case, he did so by first holding a press conference in which he criticized Clinton, and later, during the final days of the presidential campaign, announcing that he was reopening the investigation into Clinton while keeping the bureau’s investigation into Trump a secret. A 2017 analysis published by FiveThirtyEight makes a compelling argument that the latter decision threw a close election to Trump.

[Helen Lewis: Biden’s age is now unavoidable]

For reasons that remain unclear to me, Democrats seem to have internalized the Republican insistence that only Republicans are capable of the fairness and objectivity necessary to investigate or enforce the law. Any lifelong Republican who fails to put partisanship above their duties is instantly and retroactively turned into a left-wing operative by the conservative media. Acting to prevent complaints of bias (as opposed to actually being fair) is ultimately futile: Comey’s last-minute gift to the Trump campaign didn’t prevent Trump from smearing him as a liberal stooge.

These efforts to work the refs pay off. Right-wing criticism of Obama probably influenced him to pick a grandstanding Republican to head the FBI, an agency that has never been run by a Democrat, just as it likely influenced Garland to pick a grandstanding Republican to investigate Biden. Conservative criticism of the mainstream press leads too many journalists to attempt to prove they aren’t liberals, which results in wholesale amplification of right-wing propaganda to deflect criticisms that the media aren’t objective; the facts become a secondary concern.

Fairness, objectivity, and due process are important values, but there is a difference between upholding them and seeking to convince everyone that that’s what you’re doing. Performatively pursuing the latter can easily come at the expense of the former. If you try too hard to convince people you are doing the right thing instead of just doing the right thing, you often end up doing the wrong thing.