When special counsel Robert Hur announced his decision last month not to prosecute Joe Biden for his possession of classified documents, he made a startling claim: The president suffered from significant memory loss, Hur wrote, botching dates, names, and details—including the year of his son Beau’s death. This narrative had a chokehold on Biden’s reelection campaign until Tuesday, when newly released transcripts of the two-day interview revealed that Hur exaggerated and misrepresented multiple statements in an obvious effort to depict the president as a senile geezer unfit for office. Democrats hammered this point during a congressional hearing shortly after the transcripts came out, venting their fury at Hur for manipulating the record to smear Biden’s mental capacities. But in a sense, their rage was misplaced. It would be more appropriately directed toward the one person on the planet who apparently believed that Hur would serve as a fair arbiter of this controversy: Attorney General Merrick Garland.
It was Garland, after all, who appointed Hur—a former U.S. attorney appointed by former President Donald Trump—to investigate the allegation that Biden held on to classified materials after leaving the vice presidency. No one forced Garland to do so. There were plenty of former U.S. attorneys under Democratic presidents who served with integrity and could have stepped into the Biden probe. But as MSNBC’s Chris Hayes has noted, there appears to be an unwritten rule that only Republicans may be appointed as special counsel when a president or presidential candidate is accused of misconduct. Bill Clinton, George W. Bush, Hillary Clinton, Trump, and now Biden all faced down GOP prosecutors. Garland made the conscious decision to continue that tradition, with results that are as disastrous as they are predictable: His choice to scrutinize Biden transformed the job into an audition for an even more prominent role in Trump’s second administration.”
A handful of left-leaning Hur defenders have argued that the special counsel did, in fact, discharge his duties with commendable independence. They point to Hur’s acknowledgment that Trump’s misconduct was far more serious than Biden’s, justifying his decision not to charge the sitting president with any crime. Well, yes: The evidence suggests that Trump intentionally absconded with massive amounts of classified materials, lied about it to investigators, then engaged in a criminal conspiracy to conceal the materials from federal law enforcement. What, by contrast, did Biden do? Carelessly brought a small number of secret files (including his own handwritten notes) home to Delaware, then complied fully with law enforcement after they were discovered. No reasonable prosecutor would have brought charges because there was absolutely no chance of winning and sustaining a conviction. Zilch. Not in this lifetime or any other. Hur had to compare Trump’s and Biden’s alleged offenses to explain to Republicans that he had no choice but to walk away without seeking an indictment. He deserves no credit for bowing to reality.
Why did Garland appoint Hur? Because the attorney general has a fetish for bipartisanship and a deep, overwhelming desire to be admired by the American people. These dual fixations drive him to conflate the real world with The West Wing, presuming—wrongly and repeatedly—that he could win universal acclaim by appeasing Republicans. It won’t work.
Garland’s one genuinely smart move was appointing Jack Smith to investigate Trump (after waiting way too long to do so). And that decision turned the GOP against him forever. One might suppose that Garland, of all people, would realize that Democratic appeasement and unilateral disarmament does not work in the face of Republican hardball. Obama nominated him to replace Justice Antonin Scalia in 2016 specifically because the president assumed that Republicans would assent to an older, moderate white man. Obama, we all know now, was disastrously wrong. And somehow, Garland did not learn his lesson. All these years later, he still hasn’t. And it is Biden who’s paying the price.