Journalists Are Idiots

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The Real “Robert Hur Report” (Versus What You Read in the News)

How the Special Counsel report has been misinterpreted

By @AWeissmann_ and @rgoodlaw #HurReport #mediahttps://t.co/GdBae5ksYD

— Just Security (@just_security) February 10, 2024

We all think we know what a “crime” is because we’ve all seen TeeVee and movies, and what criminals do makes their actions a crime. So when you read this:

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”

We see “evidence” all the time in crime stories, right? Case closed! Guilty, guilty, guilty! Except “evidence” is a big tent, and there’s plenty more evidence cited in this report. But consider how Just Security says that executive summary should read, based on what the report says:

We have concluded that there is not a prosecutable case against Biden. Although there was a basis to open the investigation based on the fact that classified documents were found in Biden’s homes and office space, that is insufficient to establish a crime was committed. The illegal retention or dissemination of national defense information requires that he knew of the existence of such documents and that he knew they contained national defense information. It is not a crime without those additional elements. Our investigation, after a thorough year-long review, concludes that there is an absence of such necessary proof. Indeed, we have found a number of innocent explanations as to which we found no contrary evidence to refute them and found affirmative evidence in support of them.”

You may find tha last sentence too opinionated and beyond the scope of the actual report. So I’ll quote the report:

“In summary, the innocent explanation for the retention of the classified documents in the EYES ONLY envelope at the Penn Biden Center is not only plausible, it is a better explanation than one of willful retention. There is thus insufficient evidence to support charging Mr. Biden or anyone else with willful retention of the documents in the EYES ONLY envelope at the Penn Biden Center.” (p. 307)

In their introduction, Just Security explains the import of that language:

The report finds that the evidence of a knowing, willful violation of the criminal laws is wanting. Indeed, the report, on page 6, notes that there are “innocent explanations” that Hur “cannot refute.” That is but one of myriad examples we outline in great detail below of the report repeatedly finding a lack of proof. And those findings mean, in DOJ-speak, there is simply no case. Unrefuted innocent explanations is the sine qua non of not just a case that does not meet the standard for criminal prosecution – it means innocence. Or as former Attorney General Bill Barr and his former boss would have put it, a total vindication (but here, for real).

So that language is on p. 6 (surely journalists can read that far!) and p. 307. But journalists don’t (apparently) understand that “innocence” is seldom a term in criminal law. When “The Innocence Project” overturns a conviction, the court doesn’t declare the convicted to be innocent. It says he/she was wrongly convicted, usually because of the way evidence was handled. For a prosecutor to say there is not only insufficient evidence to prove guilt beyond a reasonable doubt, but affirmatively that there is evidence for a plausible explanation of innocence is tantamount to Richard Dawkins publishing a book arguing God may be real after all.

Which is not what the press went with; to say the least.

The details are detailed at Just Security. This is just to say, not only “It ain’t necessarily so,” but it isn’t that way at all. Sure, Robert Hur supervised a shitty report; but the press proved themselves not to be Otis, but just to be useful idiots.