I Think We’ve Found The Problem With “Special Counsels”

So @emptywheel just demolished Robert Hur’s flawed rationale and weirdly unsubstantiated speculation enshrined in the Biden classified docs report.

Any chance the @nytimes or @washingtonpost or any other media outlet will report on this story? I doubt it. https://t.co/vvb7T7m0EI

— Liam Piersall Jr. (@KingLearJett) February 10, 2024

In the middle of his explanation for why he believed that Joe Biden had willfully retained classified records pertaining to Afghanistan but that he couldn’t prove that beyond a reasonable doubt, Special Counsel Robert Hur admitted that jurors “who are unwilling to read too much into” what Hur describes as an 8-word utterance would find his case lacking.

But reasonable jurors who are unwilling to read too much into Mr. Biden’s brief aside to Zwonitzer–“I just found all the classified stuff downstairs”–may find a shortage of evidence to establish that Mr. Biden looked through the “Facts First” folder, which is the only folder known to contain national defense information. These jurors would acquit Mr. Biden of willfully retaining national defense information from the “Facts First” folder.

I’m puzzled how this is not a confession that he, Hur, was really reading too much into two file folders the FBI found in a box in Biden’s garage. 

Indeed, that’s what two bizarre chapters in his story are, Hur the novelist, spinning a story about this box because, he admitted much earlier, this is the best he’s got.

If they can’t go to court and put their conclusions to the test (the Jack Smith exception that proves the rule), they write ridiculous reports that baldly justify their very existence. (“I woulda/coulda/shoulda been a very big deal!”)

Prosecutors ordinarily bring cases where they are warranted based largely on the need to win. If they can’t win the case, it quietly goes away. If it can’t quietly go away, they do their best to win and take their lumps when they lose. (Classic example: the murder trial of O.J.Simpson). Special prosecutors have to justify their existence. Their cases never quietly go away. And if they don’t prosecute (or can’t; Mueller couldn’t bring criminal charges against a sitting President. The only constitutionally allowed remedy there is impeachment.), they have to write reports.

There is no adversarial system for reports. And that’s the problem. They are very one-sided; but they get reported as “truth.” Even when they are as badly written as the Hur report.

Prosecutors are supposed to defend their position in a court of law, facing (ideally) an independent and impartial judge, and a strong defense attorney. They aren’t supposed to write one-sided reports. Prosecutors are like the proverbial man with a hammer: everyone is a guilty nail. This is why you don’t talk to the police without a lawyer. Anything you say can be used against you, and their only interest is in bringing charges. If they can’t (because they won’t win), lucky you. But that doesn’t mean you’re innocent; it just means they can’t prove you guilty.

Which is, as I say, the problem with prosecutor’s reports.

.@Messina2012: Hur didn't have enough to charge the president, but he's a Republican and felt the need to take some political shots and go after him for personal things that have nothing to do with what his task was. The report is a political document pic.twitter.com/lfRyJkaOWc

— Biden-Harris HQ (@BidenHQ) February 9, 2024

Inevitably. As was Ken Starr's report on Bill Clinton.

.@JoeNBC: Something jumped out in the report. On page 1, Republican counsel Hur says Biden willfully took documents and then 200 pages later says, there is a ‘shortage of evidence’ for that. He did that multiple times. It certainly seems like a politically charged document pic.twitter.com/8dIy2J5IAQ

— Biden-Harris HQ (@BidenHQ) February 9, 2024

But there’s the nut: this document contradicts itself. A regular prosecutor could have simply said there was insufficient evidence to prosecute (and left the implication of guilt which always surrounds an investigation to linger on). A special prosecutor can’t do that. The time and expense have to be justified. A report is required by law. Which is neither due process nor equal protection of the laws. Nor is it unconstitutional; so here we are.