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Did he do it or did someone else?

and that irrelevant factoid was not the only example of Hur's gratuitous editorializing...as seen in this critique from WH attorneys who reviewed the Report
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Special Counsel Robert K. Hur
Deputy Special Counsel Marc Krickbaum
Department ofJustice
145 N Street :tortheast
Washington. D.C. 20503

Dear Special Counsel Hur and Deputy Special Counsel Krickbaum:

We are pleased to see thaL after more than a year of investigating. you have detennined
that no criminal charges are warranted in this matter. Though ;i,,e wholeheartedly agree with
your conclusion. we are taking this oppo11unity, pursuant to our agreement. to address specific
issues that Ve have identified in the report. Vv'e do so in the interest-which we believe that the
Office ofSpecial Counsel shares-ofa final report that is both accurate and consistent with
Department ofJustice policy and practice.

Ve have been selective in the choice of issues for your consideration. We believe that
each one presented below merits your careful review before finalizing your report.

l- We do not believe that the report's treatment of President Biden's memory is accurate
or appropriate. The report uses highly prejudicial language to describe a commonplace
occurrence among witnesses: a lack of recall of years-old events. Such comments have no place
in a Department of Justice report, particularly one that in the first paragraph announces that no
criminal charges are "warranted'' and that "the evidence does not establish Mr. Biden's guilt." If
the evidence does not establish guilt, then discussing the jury impact of President Bi den's
hypothetical testimony at a trial that will never occur is entirely superfluous.

In fact there is ample evidence from your intervievv· that the President did well in
answering your questions about years-old events over the course of five hours. This is especially
true under the circumstances, which you do not mention in your report, that his interview began
the day after the October 7 attacks on Israel. In the lead up to the interview, the President was
conducting calls with heads of state, Cabinet members, members ofCongress, and meeting
repeatedly with his national security team.

The Special Counsel recognized the extraordinary juxtaposition of these events when he
"thank[ed]" the President "for being here and making this lime for us" given that there were "a
lot of other things in the world going on that demand your attention:· Interview Transcript
("Tr.''), Day Lat 3. Subsequently, far from being "hazy:' Report at 208. the President proceeded
to provide often detailed recollections across a ,vidc range of questions, from staff management
of paper flow in the Vest Wing to the events surrounding the creation ofthe 2009 memorandum
on the Afghanistan surge. He engaged at length on theories you offered about the way materials
were packed and moved during the transition out of the vice presidency and between residences.

He pointed to flaws in the assumptions behind specific lines of questioning.

At the outset of the interview, you recognized that the questions you planned to ask
··relate to events that happened years ago.'' but nonetheless expressed your hope that the
President would '·put forth [his] best efforts and really try to get [his] best recollection in
response to the questions we ask.'' Tr.. Day I, at 4. It is hardly fair to concede that the President
would be asked about events years in the past. press him to give his ''best" recollections. and
then fault him for his limited memory.

The President's inability to recall dates or details of events that happened years ago is
neither surprising nor unusual, especially given that many questions asked him to recall the
particulars of staff work to pack. ship, and store materials and furniture in the course of moves
between residences. The same predictable memory loss occurred with other witnesses in this
investigation. Yet unlike your treatment of President Biden, your report accepts other
witnesses' memory loss as completely understandable given the passage of time. For example.
you accepted without denigrating John McGrail's failure to remember certain events while he
served as then-Vice President Biden's counsel: ''McGrail's memory of these events could well
have faded over the course of more than 6 years." Report at 238 n.923; see also id at 67. 69
(noting Mr. McGrail's failure to recall events despite emails that place him in the center of
various discussions). So, too, you accept the memory lapse of one of the President's personal
lawyers who testified that in his initial search of the Penn Biden offices certain boxes were stored
in a locked closet, noting only that "his memory was fuzzy on that point." Id at 265. And the
events on which you found the lawyer's memory to be '·fuzzy'' occurred only a few months
before his interview. Id; see also id at 64, 66 (noting without comment the failures of
recollection by numerous staffers).

Your treatment of President Biden stands in marked contrast to the lack of pejorative
comments about other individuals. It is also in contrast to your own description of the
President's responses on other subjects as '·clear forceful testimony" that would be "compelling"
to a jury. Id. at 233.

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. You refer to President Biden· s memory on at least nine occasions-a
number that is itself gratuitous. But. even among those nine instances, your report varies. It is
one thing to observe President Bi den's memory as being "significantly limited" on certain
subjects. Id. at 5. It is quite another to use the more sweeping and highly prejudicial language
employed later in the report. 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.
2. Your report criticizes President Biden's "decision to keep his notebooks at home in
unlocked and unauthorized containers" as "totally irresponsible," applying to him the same
criticism, in the same words, he had directed at former President Trump for keeping marked
classified documents. Id at 228. Setting aside the significant difference of law and facts
between the two cases (which the report recognizes). this kind of criticism of an uncharged party
violates "'long-standing Department practice and protocol.'' See Office of the Inspector General,
U.S. Department of Justice. A Review of Various Actions by the Federal Bureau of Investigation
and Department of Justice in Advance of the 2016 Election (June 2018) ( finding that former FBI
Director James Corney violated this practice and protocol when criticizing as "extremely
careless'' former Secretary of State Hillary Clinton's use of unclassified systems to transmit
classified material). Using President Biden·s own words does not make the criticism compliant
with Department practice.

3. In an audio recording with Mr. Zwonitzer. the President said: '"I just found all the
classified stuff downstairs. I wrote the President a handwritten forty-page memorandum arguing
against deploying additional troops to Afghanistan on the grounds that it would not matter." Yet
your report appears to conclude that the President was referring to marked classified Afghanistan
documents. rather than the precise document referred to in the actual recording: the President" s
handwritten letter to President Obama about Afghanistan. which the President viewed as a
sensitive and private communication. Indeed. the President testified in his interview that.
although he didn't remember the comment to Mr. Zwonitzer, the •'only thing that [he] can think
of" Vas this handwritten letter to President Obama. Tr.. Day II, at 38. We believe that an
accurate recitation of the evidence on this point would recognize the strong likelihood that the
President was referring in the recording to his private handwritten letter to President Obama the
one mentioned on this recording immediately after the eight words that you are focused onrather
than the marked classified Afghanistan documents discovered in the Wilmington garage.

4. Your report erroneously (and repeatedly) makes statements about the value of the
marked classified Afghanistan documents to President Biden, such as President Biden had a
··strong motive·' to keep them and they were an ..irreplaceable contemporaneous record:' like the
notebooks. Report at 203. 231. These statements are contrary to the evidence and the
documents themselves. First the President forcefully testified that he "never thought abouC
writing a book about the 2009 Afghanistan policy review. Tr.. Day IL at 22. Thus, the President
had no need to retain the documents for that purpose. Second. the 2009 Afghanistan policy
revievv was one of the most "videly covered foreign policy decisions in history. documented in
near real-time by public releases of government documents, leaks to newspapers. and
publications by writers like Bob Woodward. The idea that the President needed to keep any
classified documents related to these events, let alone the particular ones found in his garage, is
implausible. This is particularly true given that the documents at issue primarily consist of
drafts. duplicates, and a disorganized and incomplete assortment of briefing materials and
presentations-nothing remotely resembling a consciously selected set of documents kept for
historical value. Indeed, your report acknowledges that certain "•important" documents are not in
the folders, including documents that-if President Biden had sought to keep documents for
history· s sake ( which he did not)-one ,vould expect to be included. However. your report fails
to describe the haphazard and essentially random nature of the documents discovered. We
believe that a fair and more accurate recitation of the evidence on this point would include a
description of the documents that makes clear they do not appear to have been intentionally
selected for retention.

3
2c Your characterization of the box in the garage as containing only matters of "great
personal significance'' to the President is inconsistent with the facts. The evidence shows that
this tattered box contained a random assortment of documents. including plainly unimportant
ones such as: a short-term vacation lease; a VP-era memorandum on furniture at the Naval
Observatory for purchase; talking points from speeches: campaign material; empty folders; a
1995 document commemorating Syracuse Law's 100-year anniversary; and other random
materials. In his interview. President Biden commented regarding one of the folders, which read
"Pete Rouse·': "Christ that goes back a way," confirming that he had not encountered that
material in recent years. Tr., Day I, at 144. When asked how things like a binder labeled "Beau
Iowa" got into the ·'beat-up" box. the President responded "'Somebody must've, packing this up,
just picked up all the stuff and put it in a box, because I didn't." Id. at 146. When asked about
the later-dated material, the President responded: ·'[s]ee, that's what makes me think just people
gathered up whatever they found, and whenever the last thing was being moved. So the stuff
moving out of the Vice President's residence, at the end of the day, whatever they found. they
put - they didn't separate it out, you know, Speakers Bureau and Penn or whatever the hell it is.
or Beau. They just put it in a single box. That's the only thing I can think of."' Id. at 147. Some
of the documents in the box contain what appears to be staff handwriting--including a D.C. tax
return and a W2-further indicating that the box was likely filled by staff. We believe that an
accurate recitation of the evidence on this point would include a description of these facts.

6. In the course of his recorded conversations with his \Titing assistant. the President
makes a comment-''they didn't even know I have these ... Your report repeatedly cites the
comment (e.g., Report at 8. 64. 65, 230. 242) and. from these six words, asks the reader to
conclude that President Biden was ·•distinguish[ing] between his notecards. which his staff was
in the process of implementing protocols to safeguard. and his notebooks. which 'they didn ·t
even know I have.""' Id at 65. The President" s comment does not support this unfounded
conclusion. It is unclear who the President was referring to as "they'· or what he was referring to
as "these,·· let alone that he was somehow distinguishing between his notecards and his
notebooks. We believe the repmi should not make such unsupported assumptions-or leave the
erroneous impression that the fact of President Bi den· s notebooks was unknown. Vhen the report
itself shows that it was well known and even documented in photographs.

7. There are a number of inaccuracies and misleading statements that could be corrected
with minor changes:
o ·'We considered the possibility that Mr. Biden alerted his counsel that classified
documents were in the garage but our investigation revealed no evidence of such
a discussion because if it happened, it would be protected by the attorney-client
privilege." Report at 22. In fact, your investigation revealed no evidence of such
a discussion because it did not happen-not because of any privilege. The
President testified he was unaware that there were any classified documents in his
possession. Tr., Day II, at 2, 41-42. You did not ask him in his interview or in
the additional written questions if he had "alerted his counsel" about classified
documents; if you had, he would have forcefully told you that he did not.
o The report states that the President Biden's book, Promise Me. Dad, "is not
known to" contain classified information. Report at 97. The book does not
contain classified information and there has never been any suggestion to the
contrary.

o "While it is natural to assume that JRB put the documents in the box on purpose
and knew they were there, in fact there is a shortage ofevidence on these points."
Id. at 215 (emphasis added). We do not understand the basis for claiming this is a
"natural" assumption.

o In connection with its discussion of the Reagan diaries, the report states that the
Special Counsel's Office "viewed the materials that were deemed to be classified
at the Top Secret/SCI" level from the Reagan diaries, citing a December 1, 2023
production from the National Security Council. Id. at 199-200. This is not
accurate; as was stated in the production letter, you viewed only a sample of such
material. We offered to make the full volumes available for your review.

o The report claims that the Archives staffasked to see President Biden's notes
from one of his visits to the Archives in 2017, id. at 231, citing an earlier chapter,
but such a proposition is not made in the earlier chapter, leaving us to raise the
question ofwhether it is accurate.

o The header on page 333 refers to the discovery ofa document in President
Biden's home in the second-floor office, but the text asserts that the document
was found in the third-floor den. The header appears to be inaccurate.

We respectfully request your close attention to these issues before finalizing your report.

Richard Sauber
Special Counsel to the President

Bob Bauer
Personal Counsel to Joseph R. Biden, Jr.
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Special Counsel Hur's Report contained irrelevant, inaccurate and prejudicial commentary...he needs to own it...and apologize...or face an uncertain future among truly professional attorneys.

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If he passes cognitive test, I am sure he will fail in polygraph test.

If he fails in cognitive test, he should pass polygraph test. LOL.

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For removing docs.You can't have it both ways

Said nobody.

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Hey, it'll work with his base.

And they should be.