Lawmakers largely muddied the waters in seeking to capitalize on special counsel Robert Hur’s report on President Biden’s classified records investigation, offering incorrect conclusions about why the president skirted any charges.
National security law experts say members on both sides ignored clear nuances in Hur’s decision not to recommend any charges for Biden, wrongly suggesting charges were declined due only to memory issues or that the report cleared the president entirely.
“The feigned ignorance of these folks is overwhelming and undermines their own credibility,” Mark Zaid, a national security law expert, told The Hill, arguing both sides acted to “bolster their ideological and political agenda.”
He said Democrats didn’t acknowledge “harmful” assessments of Biden’s actions, while, in comparing Trump’s matter to that of the president’s, there was a “failure of the Republicans to reconcile the two and recognize a distinction between the two.”
“The majority of them are experienced lawyers. This interpretation does not require rocket science,” he said.
During the five-hour hearing this week, Republican’s zeroed in on language in the law that targets those who “willfully retain” national defense information, suggesting the phrase was a “get out of jail free” card for Biden.
Rep. Matt Gaetz (R-Fla.) dubbed it the “senile cooperator theory” while Rep. Tom McClintock (R-Calif.) suggested, “All I have to do when taking home classified materials is say, ‘I am sorry. I am getting old. My memory is not so great.”
Meanwhile, numerous Democrats borrowed a phrase from former President Trump in calling the report a “total exoneration” for Biden — a characterization Hur would later forcefully dispute.
More than Congress’s other panels, the House Judiciary Committee is filled with longtime lawyers, former prosecutors, and even constitutional scholars, though members are not required to hold a law degree.
But those experts appeared to be tripped up by portions of the Espionage Act —the same law being used to prosecute Trump — in how it addresses whether a person willfully retained records.
While intent matters little in most of the criminal code, it plays a greater role in some statutes, particularly those involving speech.
And in the case of intelligence community and military workers who regularly handle national defense information, the law accounts for mistakes, even in the handling of highly classified records.
“The best way to think about why willfulness matters is to think about what would happen if it wasn’t there,” said Kel McClanahan, executive director of National Security Counselors, a nonprofit law firm specializing in national security law.
Zaid said whether it’s accidentally taking home their work or discovering documents years after they’ve retired, misplacement of classified records is not uncommon.
“The reality is there is mishandling of classified information that occurs on a daily basis. Routinely people mistakenly take documents home,” he said, noting that typically, only the most egregious cases are prosecuted, while others risk revocation of their security clearance or other forms of adverse action.
But for Biden, the case was much more complex than whether he simply forgot he was in possession of the documents.
Hur notes in his report it’s not clear how the documents likely packed up and moved by White House staff made it to Biden’s office at the Penn Biden Center and his home. He noted their storage in the garage among “household detritus” as a likely indication the president was unaware they were there.
While serving as vice president, Biden was permitted to take classified records to his home at the time — another factor that may have played a role in the records being improperly transferred.
Similarly, Trump is not…
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