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‘Confidential’ in name only: Merrick Garland’s delicate decision to release the Hur report

The White House is livid over the Justice Department’s release of a special counsel report that painted a devastating portrait of Joe Biden. But Attorney General Merrick Garland’s decision to release it was a foregone conclusion — and anything short of publicizing the full report would have been worse.

Technically, the report from special counsel Robert Hur on Biden’s mishandling of classified documents is considered confidential under DOJ rules. Hur even labeled it as such.

In practice, though, burying or censoring the report would have been untenable, former Justice Department leaders say.

They described a high-stakes calculus for both Garland and Hur informed by previous politically sensitive investigations: Special counsel reports have always been made public in recent years, and Garland would have been slammed by Republicans and the press if he tried to keep this one under wraps. Hur, meanwhile, clearly understood that political reality, so the harsh language he included was exactly what he expected the public to see.

The result on Thursday was a public 345-page document, bearing the Justice Department’s imprimatur, that described the president as embarrassingly, and perhaps dangerously, forgetful. Hur’s allies say he needed to include the details about Biden’s mental state because such judgments are critical to decisions about whether to prosecute for these sorts of crimes.

“I just think it’s a question of the compelling public interest at the time, and Garland having to bow to that,” said former Attorney General Bill Barr, referring to the decision to release Hur’s report. “Can you really draw the line and say, ‘I’m not going to put this out,’ without having people even more suspicious? That’s almost as bad as letting it out. At that point, your options are very limited.”

In 2019, Barr’s decision to release the largely unredacted report of special counsel Robert Mueller helped paint a damaging picture of Donald Trump’s embrace of Russian interference in the 2016 election, despite Mueller’s decision not to recommend criminal charges.

But before he released the Mueller report, Barr infuriated Trump’s detractors by sharing his own analysis of its conclusions. Garland eschewed that tack. Instead, he simply released the full document, letting it stand on its own.

Still, releasing it at all was Garland’s decision, noted Barr’s former deputy, Rod Rosenstein, particularly because Hur recommended no charges against anyone involved. Rosenstein noted that prosecutors regularly write documents explaining their decisions not to bring charges. And those documents are typically kept secret.

“Rob Hur didn’t issue a public report,” Rosenstein said. “He wrote a confidential internal memo. Attorney General Garland made the decision to release it.”

Many Justice Department veterans saw that outcome as inevitable, though. Garland had already committed, in a statement last year, to publicize all special counsel reports to the greatest extent possible. And Biden’s White House opted not to assert executive privilege over any portion of Hur’s report.

The report recommended against charging Biden, arguing that his forgetfulness — even about the dates of his vice presidency or the year of his son’s death — would make it difficult to prove in court that he had criminal intent when he accumulated classified documents at his residence. Hur adorned that description with a cutting assessment of his own interview with Biden, saying the president came across as “a sympathetic, well-meaning elderly man with a poor memory.”

Biden’s attorneys lashed Hur — in a letter appended to the report — for including those references, and they contended that Hur exhibited bias against Biden for attributing his forgetfulness to age, while taking a more understanding tone toward other witnesses who forgot details from years-old events.

Biden himself complained about Hur’s report Thursday evening for invoking his son’s death and whether Biden remembered it clearly. “How the hell dare he raise that?” the president said of Hur.

Other Justice Department veterans and Biden allies described the report as “gratuitous,” particularly his remark that challenged Biden’s memory of the timing of his son Beau’s death.

“Mr. Hur seems to have gone beyond the limits of what he can write by adding what appear to be simply unnecessary comments about the president’s age and memory, especially the gratuitously bold assertion about forgetting when his son passed,” said Gene Rossi, a former federal prosecutor.

Jamie Gorelick, a deputy attorney general under President Bill Clinton, agreed.

“The language that Hur used, I thought, was remarkable and unfortunate,” Gorelick said. “I think he could have listed his reasons for not recommending a charge or not charging without that kind of gratuitous slam.”

Democrats on Capitol Hill largely rallied to Biden’s defense too, accusing Hur of grandstanding and disrespecting Biden.

Some compared it to a 2016 episode when then-FBI Director James Comey announced a decision not to charge Hillary Clinton with mishandling classified information — only to hold a press conference at which he accused her of being irresponsible with national security secrets. Comey earned a scolding from a Justice Department watchdog for that move.

One of Comey’s top allies and advisers from his FBI days acknowledged the parallels between Garland and Hur’s decision and the former FBI director’s, calling it part of a “new, perhaps regrettable, reality.”

“Sad to say, we also regularly find ourselves presented with situations where the legitimacy of a prosecutor’s decision not to charge a politician, police officer or other public figure turns on the explanation she gives,” said Daniel Richman, now a professor at Columbia University. “The norm of never going beyond a simple ‘no’ will often not cut it, especially when a declination will usually be spun as a full exoneration or a whitewash, and the possibility of congressional hearings looms large.”

While the DOJ regulations used to appoint special counsels call for their final reports to be confidential and Hur labeled his as such, in recent years it has become customary for attorneys general — facing political pressure — to vow to release them publicly to the extent the law allows.

Despite the caterwauling from the White House this week, the conclusion of Hur’s probe was sure to draw a flurry of Freedom of Information Act requests and lawsuits from news organizations and Biden’s political foes. House Republicans could also have subpoenaed the report and related records. The letter Biden’s lawyers sent to Hur indicates transcripts exist of the prosecutor’s interviews with Biden, so the memory lapses Hur cited may have become public whether Hur had colorfully characterized them or not.

Special counsels, by their nature, often operate on politically explosive terrain. They’re typically appointed in high-stakes cases where Justice Department processes might be perceived as politically biased. That drives extraordinary public interest in their final reports. And without exception, special counsel reports of the last five years have become public with few limitations.

Barr drew a sharp contrast between Hur and Mueller, noting that Mueller’s final report made no recommendation on whether or not Trump should be charged with obstruction of justice for trying to sideline the investigation altogether. In explaining his non-decision, Mueller cited the Justice Department’s long-standing prohibition on prosecuting sitting presidents. He punted the decision to Barr, who concluded no charges would have been appropriate even if a president could be charged while in office.

Hur, however, took the opposite approach. In the first two sentences of his report, he said Biden shouldn’t face charges even if DOJ policy allowed them.

Barr praised Hur’s finality. And he said it necessitated Hur’s description of Biden’s mental state. In the report, Hur cited Biden’s apparently faulty memory as a reason jurors might conclude he just forgot to return classified documents, rather than deliberately hoarding them.

“He didn’t do what Mueller was properly criticized for, which was not reaching a decision and just throwing this stuff out,” Barr said. “He reached a decision, and the mental state was an integral part of that.”

And while some Justice Department veterans said the buck stops with Garland, others argued that the attorney general had no choice but to release the report Hur delivered. Hur and his team likely would have understood that their words would become public, even though the report was labeled “confidential.”

“Mr. Hur’s report had to be released unedited lest the attorney general were to be accused of protecting President Biden,” Rossi said.

Gorelick said that under the circumstances it would have been “very hard not to” release Hur’s report, but that the better policy is for such reports to remain secret.

“I would say any report should be confidential,” she said. “You make a charging decision or not and that should be the end of it.”

The debate over publishing the reports by independent prosecutors dates back to the 1980s, when critics of the independent counsel law then in effect complained that those prosecutors’ reports could amount to character assassination.

“There’s just a history of mischief,” Gorelick said. “There’s just too many ways in which what happened yesterday can happen.”

By the 1990s, many liberals joined in the chorus of criticism of the law as Clinton’s administration faced seven such investigations, including the Whitewater probe. Congress let the law expire in 1999, prompting the Justice Department to issue the regulations for special counsels that remain in effect today.

Among those who raised concerns about such reports was Brett Kavanaugh, who served as a prosecutor on Independent Counsel Kenneth Starr’s staff and now sits on the Supreme Court. (Kavanaugh left open the idea, though, of a report to Congress about possible impeachable offenses.)

“As a general proposition, a public report is a mistake,” Kavanaugh wrote in a 1998 law review article. “It violates the basic norm of secrecy in criminal investigations, it adds time and expense to the investigation, and it often is perceived as a political act. It also misconceives the goals of the criminal process.”

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