Report: Jury would see Biden as a ‘sympathetic, well-meaning, elderly man with a poor memory’
BY: JENNIFER SHUTT
SC Daily Gazette - FEBRUARY 8, 2024 6:18 PM
WASHINGTON — The U.S. Justice Department released a lengthy report Thursday concluding that while President Joe Biden “willfully retained” classified materials following his time as vice president, he won’t be charged with a crime.
Special Counsel Robert K. Hur wrote in the 388-page report that prosecutors 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.”
“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt,” the report states. “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.”
“We conclude the evidence is not sufficient to convict, and we decline to recommend prosecution of Mr. Biden for his retention of the classified Afghanistan documents,” the report states.
It says, “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”
Biden in a press conference called Thursday night hit back at this characterization and others, including an assertion in the report he “did not remember, even within several years, when his son Beau died.”
“I know there’s some attention paid to some language in the report about my recollection of events,” Biden said. “There’s even reference that I don’t remember when my son died.”
“How in the hell dare he raise that,” he said, adding that he still wears his son Beau’s rosary, and said he “does not need anyone to remind me of when he passed away.”
While he took a few questions from the press about the report and about Israel, he was often combative.
“I’m well-meaning and I’m an elderly man, and I know what the hell I’m doing,” he said. “My memory is fine.”
One reporter asked the president why he was confusing the names of world leaders.
Biden, addressing the hostage negotiations between Israel and Hamas, noted that Israel’s response to Hamas in Gaza “has been over the top,” and argued that he helped negotiate allowing humanitarian aid through Egypt by talking with Egypt’s president, Abdel Fattah El-Sisi, to open those borders.
However, he instead referred to El-Sisi as the president of Mexico.
“Initially the president of Mexico, Sisi, did not want to open up the gate to allow humanitarian aid to get in, I talked to him, I convinced him to open the gate,” Biden said.
Executive privilege
Attorney General Merrick Garland wrote in a one-page letter to Congress that Biden “has decided not to assert executive privilege over any part of the report or its appendices.” The doctrine of executive privilege allows the president to withhold certain documents or information from the judicial or legislative branches.
The Hur report seeks to differentiate between the Biden investigation and another of former President Donald Trump’s handling of documents, which did lead to charges, saying there are “several material distinctions.”
“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts,” the report says. “Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.”
The report adds that Trump allegedly “obstructed justice by enlisting others to destroy evidence and then to lie about it.”
“In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview. and in other ways cooperated with the investigation,” the report added.
The announcement quickly provoked a reaction from Trump, who in a written statement released by his campaign said the two cases are significantly different and that he “did nothing wrong.”
Trump alleged there is a “two-tiered system of Justice” and called for the special counsel in his case to drop it immediately, saying it represents “election interference.”
Biden says he ‘threw up no roadblocks’
Biden said in a written statement that he was “pleased to see they reached the conclusion I believed all along they would reach — that there would be no charges brought in this case and the matter is now closed.”
“This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young Senator,” Biden said. “I cooperated completely, threw up no roadblocks, and sought no delays.”
Biden noted in his statement that he sat for five hours of interviews with the special counsel on Oct. 8 and 9, 2023, the two days following the terrorist attacks in Israel. He reiterated that at his press conference Thursday night.
While he was “in the middle of handling an international crisis,” Biden said that he “believed that’s what I owed the American people so they could know no charges would be brought and the matter closed.”
Garland announced Hur as the special counsel in January 2023; Trump had appointed Hur to lead the prosecutor’s office in Maryland in 2018. He left in 2021 to join the Gibson, Dunn & Crutcher law firm.
The announcement of the special counsel came after classified documents were found at the Penn Biden Center in Washington, D.C., on Nov. 2, 2022 and then in the garage at Biden’s home in Wilmington, Delaware, on Dec. 20, 2022 and Jan. 11 and Jan. 12, 2023.
The White House defended its decisions to delay revealing that information publicly in mid-January 2023 shortly after the special counsel was publicly appointed.
Ian Sams, White House spokesman for oversight and investigations, said at the time the administration understood “that there’s a tension between the need to be cooperative with an ongoing DOJ investigation, and rightful demands for additional public information.”
“And so we’re trying to strike that balance and being as clear as we can,” Sams said.
‘Mistakes when packing documents’
Special Counsel to the President Richard Sauber said in a written statement released Thursday that Biden cooperated with investigators and that the report acknowledges “mistakes when packing documents at the end of an Administration or when Members of Congress leave office are unfortunately a common occurrence.”
“Now that this investigation has concluded, President Biden plans to take new, substantive action to help prevent such mistakes in the future and will announce it soon,” Sauber said.
Bob Bauer, personal counsel to Biden, said in a written statement that the special counsel’s decision “rested on evidence compiled using millions of taxpayer dollars over a 15-month inquiry involving 173 interviews of 147 witnesses and more than 7 million documents.”
“He specifically noted that he would have reached the same conclusion even if the President were a private citizen and not the sitting president,” Bauer said.
“The Special Counsel also noted the President’s complete cooperation, including the President’s unprecedented decision to open up every room of his family home and beach house to comprehensive FBI searches as well as a voluntary interview conducted over two days.”
Ariana Figueroa contributed to this report.
Jennifer covers the nation’s capital as a senior reporter for States Newsroom. Her coverage areas include congressional policy, politics and legal challenges with a focus on health care, unemployment, housing and aid to families.
Trump disqualification case from Colorado faces headwinds of Supreme Court doubt
BY: CHASE WOODRUFF
SC Daily Gazette - FEBRUARY 9, 2024 6:40 AM
An “unmanageable situation.” A “pretty daunting consequence.” A “troubling potential disuniformity.”
Although the justices of the U.S. Supreme Court differed in the words they chose to describe it, they were largely united in using their questions during oral arguments Thursday to fret over the potential repercussions of upholding the Colorado Supreme Court’s historic decision to bar former President Donald Trump from the state’s primary ballot under a Civil War-era insurrection clause.
The case began last year as a lawsuit filed by six Republican and unaffiliated voters against Trump and Colorado Secretary of State Jena Griswold, a Democrat. Backed by the liberal nonprofit Citizens for Responsibility and Ethics (CREW) in Washington and armed with a legal theory endorsed by a handful of prominent legal scholars, the plaintiffs argued that Trump’s actions in relation to the Jan. 6 attack on the U.S. Capitol disqualify him from office under the 14th Amendment to the Constitution. Section 3 of the amendment prohibits someone who took an oath to support the Constitution and then “engaged in insurrection” from holding office again.
Though the clause has been invoked in only a small number of cases in the last 150 years, a challenge brought by CREW successfully led to the 2022 removal of a county commissioner in New Mexico who had participated in the events of Jan. 6. Colorado was singled out by CREW as a “good venue” for a challenge against Trump’s candidacy because of provisions in its election code that explicitly bar candidates who are ineligible to assume office from appearing on the ballot.
A 4-3 majority of the Colorado Supreme Court, writing that it was “cognizant that we travel in uncharted territory,” ruled on Dec. 19 that Trump was ineligible, though it stayed its decision pending a highly anticipated U.S. Supreme Court appeal.
“We are here because, for the first time since the War of 1812, our nation’s Capitol came under violent assault,” Jason Murray, an attorney representing the plaintiffs, told the court during Thursday’s oral arguments. “For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.”
Very little of Thursday’s two-hour hearing, however, was devoted to the specifics of what transpired on Jan. 6, 2021. Justices instead focused at length on two key legal issues raised by Trump in his defense: the question of whether Section 3 can be enforced by a state in the absence of legislation from Congress, as well as a theory holding that the clause’s reference to “officer(s) of the United States” doesn’t include the president.
Griswold, an outspoken Trump critic, took no position on Trump’s eligibility during trial proceedings last year, but has since said the Colorado Supreme Court “got it right,” and formally urged the U.S. Supreme Court to affirm the decision.
“We’ll follow the Supreme Court’s decision. What their decision will be, we can’t say at this point,” Griswold said in an interview following the hearing. “I think it would be a dangerous and sad day for the United States if Trump’s arguments were upheld.”
‘Pervasive national interest’
Echoing the views expressed by many commentators and Republican state officials in the weeks since the Colorado decision, members of the court — where Republican-appointed justices hold a 6-3 majority — raised the specter of a series of retaliatory disqualifications and a chaotic patchwork of standards at the state level if the ruling is affirmed.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side, and some of those will succeed,” Chief Justice John Roberts said. “I would expect that, you know, a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others, for the Republican candidate, you’re off the ballot. It’ll come down to just a handful of states that are going to decide the presidential election.”
Justice Elena Kagan, a member of the court’s liberal minority, appeared to agree, referring to the court’s previous recognition of a “pervasive national interest in the selection of candidates for national office.”
“It’s a broader principle about who has power over certain things in our federal system,” Kagan said. “There are certain national questions where states are not the repository of authority. … What’s a state doing deciding who other (states’) citizens get to vote for for president?”
Trump himself addressed the ballot case in a brief appearance Thursday morning outside his Mar-a-Lago resort in Palm Beach, Florida.
“It’s unfortunate that we have to go through a thing like that,” Trump said. “I consider it to be more election interference by the Democrats.”
Colorado in the spotlight
Alongside oral arguments by Murray and Trump attorney Jonathan Mitchell, Colorado Solicitor General Shannon Stevenson briefly answered questions on Griswold’s behalf during Thursday’s hearing, telling the court that Colorado’s election laws had worked as intended.
The evidentiary record used by the Colorado Supreme Court to determine that Trump had engaged in insurrection — including hundreds of pages of testimony and video footage collected by the select U.S. House committee that investigated the Jan. 6 attack — was produced during a five-day trial in Denver District Court beginning Oct. 30.
“Nothing in the Constitution strips the states of their power to direct presidential elections in this way,” Stevenson said. “This case was handled capably and efficiently by the Colorado courts under a process that we have used to decide ballot challenges for more than a century.”
Although the Colorado Supreme Court’s decision thrust the Centennial State into the national spotlight, few prominent Colorado Democrats have eagerly embraced the ruling.
“I think we have to beat Donald Trump, if he’s the Republican nominee, in an election,” Gov. Jared Polis said in response to questions about the case in a Fox Business interview last month.
In a statement Thursday, Colorado Attorney General Phil Weiser did not refer directly to Trump or the insurrection clause but called on the court to “uphold Colorado’s election laws and our state’s right to exclude from the ballot any candidate who is ineligible for the office.”
Norma Anderson, the 91-year-old lead plaintiff in the Colorado case, is a former Republican Colorado House speaker. She was present along with other plaintiffs in the Supreme Court chambers on Thursday. Afterward, she said that the justices were “hard to read.”
“I think it’s 50-50,” Anderson said. “They were very inquisitive. I think what they were trying to figure out is, ‘Is this really my job to do?’”
Among the hundreds of people present in the court’s crowded chambers Thursday were Carlos Samour, a Colorado Supreme Court justice who wrote a withering dissent from the majority’s ruling; Gerard Magliocca, a scholar of 19th-century constitutional law who provided expert testimony on Section 3 during the Denver trial; Seth Barrett Tillman, a conservative scholar who helped popularize the theory that the president is not an “officer of the United States”; and Dave Williams, the chair of the Colorado Republican Party.
Williams, a Trump loyalist who denies the legitimacy of the 2020 election, said in an interview that he was confident the court would rule in Trump’s favor, regardless of the grounds on which it bases its decision.
“I guess I don’t have a specific way for them to resolve it,” Williams said. “Ultimately my interest is in ensuring people can vote for Donald Trump. However they get there makes no difference to me.”
Griffin’s case
The nation’s highest court has never directly weighed in on the application of Section 3, and the long dormancy of the clause has given the justices little recent case law from which to draw.
Much of the technical legal analysis in Thursday’s oral arguments concerned an 1869 ruling known simply as Griffin’s case, which arose when a Virginia man challenged his criminal conviction on the grounds that the judge who oversaw his trial should have been removed from office under the 14th Amendment, ratified the previous year.
Supreme Court Chief Justice Salmon P. Chase, acting as a lower-court judge while “riding circuit,” sided against the petitioner, ruling that disqualified officeholders weren’t removed “by the direct and immediate effect” of Section 3, but that “legislation by Congress is necessary to give effect to the prohibition, by providing for such removal.” A year later, Congress passed the Enforcement Act of 1870 to do just that, including a so-called quo warranto measure authorizing civil actions to remove disqualified officeholders.
“The holding of Griffin’s case (says) that a state is not allowed to implement or enforce Section 3 of the 14th Amendment unless and until Congress enacts implementing legislation allowing it to do so,” Mitchell said.
Supporters of Trump’s disqualification say that Griffin’s case was wrongly decided. In an influential 2023 paper on Section 3, conservative legal scholars William Baude and Michael Stokes Paulsen called Chase’s opinion “full of sleight of hand, motivated reasoning and self-defeating maneuvers.” The Griffin decision also directly conflicts with a separate circuit-court opinion authored by Chase regarding the treason prosecution of former Confederate president Jefferson Davis, in which he reached the opposite conclusion.
“Griffin was not a precedential Supreme Court decision,” noted Justice Sonia Sotomayor. “It was a circuit-court decision by a justice who, when he becomes a justice, writes in the Davis case, he assumed that Jefferson Davis would be ineligible to hold any office, particularly the presidency, and treated … Section 3 as executing itself, needing no legislation on the part of Congress to give it effect.”
But many of the justices expressed concerns about the implications of ruling that Section 3 is “self-executing,” allowing states to enforce it without congressional action. Responding to questions from Justice Samuel Alito, Stevenson said the country has “institutions in place” to prevent a tit-for-tat series of legal battles over candidate disqualifications.
“I think we have to have faith in our system, that people will follow their election processes appropriately, that they will take realistic views of what insurrection is under the 14th Amendment,” Stevenson said. “Courts will review those decisions. This court may review some of them. But I don’t think that this court should take those threats too seriously in its resolution of this case.”
“You don’t think that’s a serious threat?” asked Alito. “We should proceed on the assumption that it’s not a serious threat?”
In visible contrast to other justices, Alito, a hardline conservative appointed to the bench by former President George W. Bush in 2006, maintained a relaxed posture throughout much of Thursday’s hearing and could frequently be seen reclined and rocking in his chair during questioning.
At one point, Alito probed Murray with pointed questions about whether Section 3’s disqualification for officeholders who have “given aid or comfort to the enemies” of the United States could be used to disqualify a president who acted to “release funds” to “a country that proclaims again and again and again that the United States is its biggest enemy” — a reference to a far-right talking point positing that President Joe Biden could be disqualified for issuing certain economic sanctions waivers in the course of diplomatic negotiations with Iran.
“You’re really not answering my question,” Alito told Murray when he tried to respond. “It’s not helpful if you don’t do that.”
Though Trump was impeached by the Democratic-led U.S. House of Representatives shortly after the events of Jan. 6 for “incitement of insurrection,” he was acquitted after leaving office when all but a handful of Republican senators voted against his conviction. Last year, he was indicted by federal prosecutors who allege that his “pervasive and destabilizing lies” about the 2020 election “targeted a bedrock function of the United States federal government.”
But insurrection is not among the charges, as Justice Brett Kavanagh pointed out.
That case is still pending, and Trump’s attorneys have asked courts to dismiss it on the grounds that he is immune from prosecution for actions he took in his official capacity as president. After the U.S. Court of Appeals turned down that argument this week, Trump could soon appeal the presidential immunity claims to the Supreme Court.
Federal statute has lacked a clear civil enforcement mechanism for Section 3 disqualification since the relevant portions of the Enforcement Act of 1870 were repealed in 1948. A criminal penalty exists under a law known as Section 2383, and anyone convicted under that statute faces a prison term of up to 10 years and disqualification from “holding any office under the United States.”
Kavanaugh, one of three members of the Supreme Court appointed by Trump himself, also appeared to be satisfied with the Griffin’s case precedent during Thursday’s arguments. He said that Congress could enact Section 3 enforcement legislation similar to the criminal penalty under Section 2383 if it wanted.
“Just to be clear, under (Section) 2383, you agree that someone could be prosecuted for insurrection by federal prosecutors and, if convicted, could be or shall be disqualified then from office?” Kavanaugh asked Mitchell.
Mitchell’s answer sent a ripple of murmurs through the crowded court chambers.
“Yes. But the only caveat that I would add is that our client is arguing that he has presidential immunity,” he said. “So we would not concede that he can be prosecuted for what he did on Jan. 6 under (Section) 2383.”
Like SC Daily Gazette, Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.
Chase Woodruff is a senior reporter for Colorado Newsline. His beats include the environment, money in politics, and the economy.
