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February 9, 2024

Long declination memo from DOJ Special Counsel looking into Prez Biden's retention of classified materials

Because I am on the road, I have not yet had time to process more than the headlines surrounding the release of the big report by the Justice Department Special Counsel investigating Prez Biden’s mishandling of classified documents.  This Politico piece has a full headline that seems to provide a functional summary of the essential story: "Special counsel passes on charging Biden but paints damning portrait of him: The report criticized Biden’s conduct, saying he improperly took classified material related to the 2009 Afghanistan troop surge and shared classified information with the ghostwriter of his 2017 memoir."

The political echoes of this report seem certain to last longer than the specific concerns about how Special Counsel Robert K. Hur reached this outcome (which is the first sentence of the report): "We conclude that no criminal charges are warranted in this matter."  But for those with the time to review how this conclusion was reached, the full massive report is available here.  Here is part of the start of the executive summary of the report:

Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. 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 Wilmington, Delaware home.

However, for the reasons summarized below, we conclude that the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt. Prosecution of Mr. Biden is also unwarranted based on our consideration of the aggravating and mitigating factors set forth in the Department of Justice's Principles of Federal Prosecution. For these reasons, we decline prosecution of Mr. Biden.

February 9, 2024 at 10:38 AM | Permalink


A legal win for President Biden, but as the New York Times explained, "a political nightmare." https://ringsideatthereckoning.substack.com/p/indictments-for-thee-but-not-for?utm_campaign=reaction&utm_medium=email&utm_source=substack&utm_content=post

Posted by: Bill Otis | Feb 9, 2024 3:23:54 PM

I'd hardly call it a "legal win." Biden was allowed to get away with crimes spanning decades. Law doesn't have much to do with that. And this idea that there's not enough evidence to establish BRD--Hur is a disgraceful liar. Trump is going to make serious hay out of this "exoneration.' But Doug says everything is political--with the obvious implication being that we just have to tolerate this BS.

Biden is a corrupt, illegitimate president. In a sane world, Jack Smith would be prosecuting Biden for fraud on the US.

Posted by: federalist | Feb 9, 2024 3:40:31 PM

I do not mean to imply, federalist, that everything that is "political" needs to be "tolerated." Most obviously, we can vote out the administration that is in charge of DOJ if/when we dislike how they navigate the politics of prosecution. That action has, for example, shifted DOJ's capital punishment policy and practice pretty significantly over the last decade.

More robustly, we could seek to push our leaders to limit/defund DOJ's work in some/many areas. Starting in 2014, Congress did this with respect to DOJ prosecution of state-compliant medical marijuana actors. I suggested you join me in trying to get a Prez to promise to see to cut DOJ activity back to the more "limited government" levels of the Reagan era.

When I say "everything is political" at DOJ, federalist, I am just saying our political institutions and processes always shape and impact what DOJ does (and tries to do) --- as do legal structures and court actions/reviews. That reality, in turn, means we need to reshape political institutions and processes, as well as legal structures and court actions/reviews, if we are unhappy with how DOJ is functioning.

Posted by: Doug B | Feb 9, 2024 4:42:50 PM

federalist --

I don't think it's a "win" in any cosmic sense. It's win for Biden in the same sense that the government's decision not to pursue a charge is a win for any once-prospective defendant. But there are certainly going to be questions about a double standard of justice, yes.

Posted by: Bill Otis | Feb 9, 2024 8:01:41 PM

You have to remember the essential principle of fairness that animates DOJ appointments of special counsels to investigate elected officials: Republican special counsels are chosen to investigate Democrats, and Republican special counsels are chosen to investigate Republicans.

Posted by: Pabst Blue Ribbon | Feb 10, 2024 4:16:47 AM

Oh good grief.

Posted by: federalist | Feb 15, 2024 9:38:16 AM

"Most obviously, we can vote out the administration that is in charge of DOJ if/when we dislike how they navigate the politics of prosecution."

The problem, of course, is that many of the actions are done by career bureaucrats. And how in the world are we supposed to deal with the BS Logan Act investigation on Flynn.

Posted by: federalist | Feb 15, 2024 9:46:49 AM

Yes, federalist, many DOJ actions are done by "career bureaucrats," but they take direction from and answer to the political folks --- eg, the "career bureaucrats" did not stop the Trump Admin from starting federal executions, and they did not stop the Biden Admin from stopping executions. I could give you endless examples.

And, to the point I have been making, if you think all the DOJ "career bureaucrats" are corrupt, why not adovact to defund the whole agency and/or at least reduce/limit the work they do in certain areas. That's where I was going when I asked if you'd want a Prez candidate to pledge to cut the criminal work of DOJ in half. That you seemingly do not like such a pledge leads me to think you really do not view DOJ as corrupt and really are not that troubled by what most DOJ "career bureaucrats" are doing. That's fine, but face up to the face that your "DOJ is corrupt" bluster does not match your milquetoast advocacy for DOJ reform.

Posted by: Doug B | Feb 15, 2024 11:59:57 AM

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