White House asked special counsel to revise descriptions of Biden’s memory

The White House counsel’s office asked special counsel Robert Hur to revise some of the language in his report on his investigation into President Biden’s handling of classified documents, which highlighted that the president’s memory “appeared to have significant limitations,” leading Hur’s team to believe a jury might see Mr. Biden as a “well-meaning, elderly man with a poor memory.” 

The White House counsel’s office was so opposed to the language the special counsel used, the president’s attorneys declared the report’s descriptions of the president’s memory “inflammatory,” and asked Hur to “revisit” and “revise” the report’s language. 

Hur found Mr. Biden’s handling of classified documents from his time as vice president did not warrant criminal charges. But the report’s citations and characterizations of the 81-year-old president’s memory as he runs for a second term could be politically damaging. 

Hur found the president struggled to remember events in 2017 when he recorded conversations with ghostwriter Mark Zwonitzer, but in his more recent interview with Hur’s office, “Mr. Biden’s memory was worse.”

“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?’),” the report reads. “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. Eiden cited approvingly in his Thanksgiving memo to President Obama.”

Hur’s report said the Justice Department took the president’s memory into account as it considered how a potential prosecution could play out.  

“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 reads. “Based on our direct interaction with and observation of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.” 

Richard Sauber, special counsel to the president in the White House counsel’s office, and Bob Bauer, personal counsel to Mr. Biden, took issue with the special counsel’s characterizations of the president’s memory. 

“Not only do you treat the president differently from other witnesses when discussing his limited recall of certain years-ago events, but you also do so on occasions in prejudicial and inflammatory terms,” they wrote in a Feb. 5 letter on White House letterhead. 

Sauber and Bauer took issue with the report referencing Mr. Biden’s memory “on at least nine occasions,” a number they called “gratuitous.”

“It is one thing to observe President Biden’s memory as being ‘significantly limited’ on certain subjects. It is quite another to use the more sweeping and highly prejudicial language employed later in the report,” they wrote. “This language is not supported by the facts, nor is it appropriately used by a federal prosecutor in this context. We request that you revisit your descriptions of President Biden’s memory and revise them so that they are stated in a manner that is within the bounds of your expertise and remit.” 

Hur’s report details how Mr. Biden’s personal attorneys found documents with classified markings, and how federal investigators found more records. Between January and June 2023, FBI agents searched over 300 boxes of material from Mr. Biden’s time as a U.S. senator. “Within those boxes, agents found documents with potential classification markings, dating from 1977 to 1991, during Mr. Biden’s service in the Senate,” the report said. 

Republicans quickly honed in on the report’s descriptions of the president’s memory. Mr. Biden would be 82 at the start of a second term should he win the 2024 presidential election, and 86 at the end of that term. Former President Donald Trump, the Republican frontrunner, would be 78 upon taking office if he were to prevail in 2024.

“Among the most disturbing parts of this report is the special counsel’s justification for not recommending charges: namely that the president’s memory had such ‘significant limitations’ that he could not convince a jury that the president held a ‘mental state of willfulness’ that a serious felony requires,” members of House Republican leadership wrote in a joint statement. “A man too incapable of being held accountable for mishandling classified information is certainly unfit for the Oval Office.”

— Weijia Jiang contributed to this report

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