Democrats Furious at Special Counsel for Transparency on Biden Memory Failures

High-ranking Democratic Party officials professed shock, shock, when Special Counsel Robert Hur on February 8 released a report describing President Biden as an “elderly man with a poor memory” who mishandled classified documents.

“Gratuitous, inaccurate and inappropriate,” said Vice President Harris. “Gratuitous and wrong,” said former Justice Department official Neal Katyal. “Flouts [Justice Department] regulations and norms,” said Biden lawyer Bob Bauer. “Flatly inconsistent with long-standing DoJ traditions,” said former Attorney General Eric Holder.

But those of us with long memories recall that the special counsel rules requiring fulsome disclosure in a final report were in fact the creation of Democrats. They’ve been the regulations and norm, the long-standing tradition, at the Justice Department for a quarter century, since 1999.

Among those deep in the legal mix at the creation of the special counsel regulations: Eric Holder, Bob Bauer, and Neal Katyal. Bauer was a senior counsel to Congressional Democrats at the impeachment trial of President Bill Clinton, Katyal was a Justice Department lawyer who helped draw up the regulations, and Holder was deputy attorney general to AG Janet Reno.

Take a quick trip back to 1999 in the time machine. In the wake of the contentious investigation by Independent Counsel Kenneth Starr into Bill Clinton, the Independent Counsel Act is not renewed by Congress. To replace the Independent Counsel, Attorney General Reno creates a new special counsel.

“Much legitimate concern has been expressed about the Final Report requirement of the Independent Counsel Act,” the new regulations noted. Legitimate “privacy interests” of individuals not charged with a crime were a major concern, but it also was “appropriate for any federal official to provide a written record upon completion of an assignment, both for historical purposes and to enhance accountability.”

The new regulations tried to resolve this problem by giving the attorney general the power to determine if a report by the special counsel would be released. The attorney general would decide if the report was “in the public interest,” and if it complied with “legal restrictions.”

It’s worth noting that when Attorney General William Barr, in the case of Special Counsel Robert Mueller, exercised these powers of review, Democrats and their media allies were apoplectic. Barr’s Justice Department redacted sensitive material and the attorney general issued a letter summarizing the main findings of the 448-page Mueller Report. Then-Speaker Nancy Pelosi declared that Barr had “thrown out his credibility and the DoJ’s independence.” House Democratic Caucus Chairman Hakeem Jeffries told Barr: “keep your mouth shut.”

Barr defended his actions as squarely within the special counsel regulations. The public version of the Mueller Report, he told Congress, was “subject only to limited redactions that were necessary to comply with the law and to protect important governmental interests.”

At Judicial Watch, we’ve fought for decades for more transparency and accountability in government. We battled for full disclosure of Independent Counsel’ Starr’s corruption investigation into Hillary and Bill Clinton. In 2016, we revealed new documents about the Starr investigation.

Like Robert Hur, Ken Starr had turned up significant evidence. Like Hur, Starr had to evaluate whether, based on the evidence at hand and the trial venue, he had a good chance of winning the case before a jury. And like Hur, Starr concluded he could not win a case at trial against a prominent Democrat.

The Judicial Watch documents from the Starr probe showed that senior Starr prosecutor Paul Rosenzweig concluded the Independent Counsel team could not win a corruption case against Hillary Clinton, despite a mountain of circumstantial evidence. Rosenzweig wrote:

“In a high-profile case of this sort, however, I think that some jurors are likely to put [the Office of Independent Counsel] to the full measure of proof beyond a reasonable doubt and, in effect, insist that circumstantial evidence is an inferior form of evidence on which they cannot convict.” The bottom line, Rosenzweig concluded, was that prosecutors only has a “ten percent” chance of convicting Mrs. Clinton in the case. “Not enough in my view.”

Clinton was not indicted.

Special Counsel Hur reached a similar finding.

“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,” Hur wrote. Biden “is someone for whom many jurors will want to identify reasonable doubt.” Biden’s memory was “significantly limited.” Hur concluded: it “would be difficult to convince a jury that they should convict [Biden]—by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”

So it appears that President Biden will skate on charges of mishandling classified documents, while a certain former president faces similar charges in Florida. Democrats should thank their lucky stars. Instead, they are whining about the full disclosure and transparency dictated by the very regulations they put in place, hoist on their own petard.

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Micah Morrison is chief investigative reporter for Judicial Watch. Tips: [email protected]

Investigative Bulletin is published by Judicial Watch. Reprints and media inquiries: [email protected]

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