Gastonia, NC
An aside is a sentence you can cut without changing anything. This one cannot be cut, and the reason has nothing to do with the memo.
Four days ago, on the evening the report came out, the President walked into the briefing room to rebut it. He said his memory was fine. He said he was well-meaning and an elderly man and he knew what the hell he was doing. He said he did not need anybody to tell him when it was appropriate to grieve his son.
Then a reporter asked him about Gaza, and he said the president of Mexico, el-Sisi, did not want to open the gate.
That is the president of Egypt. He said the wrong country and the wrong man in the same clause, in the middle of a press conference he had called specifically to demonstrate that a prosecutor’s description of his memory was unfair.
I read copy for a living and I have watched a lot of people step on their own correction. I have never seen one do it that fast, on that subject, in front of that many cameras.
So the question of whether Hur’s paragraph was an aside got answered eleven minutes later by the man objecting to it. Whatever the memo was doing, it was not inventing a characterization out of nothing. It was describing something the country then watched happen live.
On the two-track claim I would be more careful than our side has been this week, and I will get to that. But on the narrow question the forum asks — aside or not — the answer came from the podium on Thursday night, and it was not the answer the podium intended.
Owatonna, MN
Minnesota reads the whole document before it argues about a sentence, so let me report what the rest of it says, because almost nobody discussing this has gone past page one.
Hur’s stated ground for declining is not the memory. It is that the evidence would not establish guilt beyond a reasonable doubt. He works through it at length: the notebooks were arguably personal papers, the marked documents in the garage could plausibly have been put there by staff during the move rather than knowingly retained, and there is a shortage of proof of the willfulness the statute requires.
That is a conventional declination on the merits, and it is the load-bearing part.
The memory language sits in a different place and does a different job. It is part of the assessment of how a case would go if brought — whether a jury would convict. That is ordinary prosecutorial reasoning. Every office in the country does it, and it always involves a judgment about how the defendant will present.
So “irrelevant aside” is wrong, and “the memory sentence is why he wasn’t charged” is also wrong. The accurate statement is that it is a secondary rationale in a document whose primary rationale is evidentiary, and our side should say that rather than the louder version, because the louder version collapses the moment somebody reads the report.
Here is what I think does survive, and it is bigger than the charging question.
For three years the capacity discussion has been conducted entirely in the register of opinion. Clips, polls, partisans arguing about what a shuffle means. On Thursday it became a finding of the United States government, written by a prosecutor after five hours of questioning across two days, in a document the White House attacked as unfair and did not attack as false.
That is a category change. Not a legal one — a documentary one. There is now an official record where before there was only argument.
And I would note the limit on it honestly. The transcript has not been released. The audio has not been released. The country has a prosecutor’s characterization and the President’s furious denial and no way at all to check either one. A serious republic would put the tape out and let people judge for themselves, and I suspect neither side wants that, which is usually the sign that the tape matters.
Prescott Valley, AZ
The two-track claim is the one everybody is making this week and I want to state it fairly before I take it apart, because I do not think it holds in the form it is being made.
The claim is: cognition was used as a reason to spare one man and ignored as a factor for the other, so there are two standards.
Here is the difficulty. A prosecutor does not volunteer that a defendant seems diminished. He assesses how the defendant will present to a jury, and he writes down what he thinks. If he had written a paragraph in the Trump indictment observing that the defendant seemed foggy and a jury might pity him, Trump’s lawyers would have filed something before lunch and Trump himself would have been on television within the hour calling it a lie. That man has spent a decade insisting he is sharper than everyone in the room. There is no version of that document in which a prosecutor gifts him a cognitive mitigator.
So the asymmetry has an ordinary explanation that has nothing to do with favoritism: one defendant presented that way and the other insists at every opportunity that he does not.
I taught for a long time and this is the kind of thing I would want students to catch. When you find an asymmetry, check whether the simplest explanation is a double standard or a difference in the underlying facts. Here the underlying facts differ enormously, and Hur says so directly — he distinguishes the two matters on obstruction, refusal to return after subpoena, and the moving of boxes, none of which appears in the Biden file.
What I would keep from the two-track argument is narrower and I think true. Not that the standard differed. That the country now has a federal document describing one president’s memory in clinical terms and no comparable document about anyone else, and that document will be quoted for a generation as though it were a medical finding, which it is not. A prosecutor’s impression from a two-day interview is evidence of something. It is not a diagnosis and it should not be taught as one.
Dayton, OH
Before anybody builds a favoritism theory on this report, check who wrote it.
Robert Hur is a Republican. He was appointed United States Attorney for Maryland by Donald Trump and served three years in that job. He clerked for Chief Justice Rehnquist. He was made special counsel by Merrick Garland precisely because his background would make a declination harder to attack as a favor.
So the document at the center of this week’s argument is a Democratic administration’s Justice Department handing a Trump appointee the file on the sitting president, and the Trump appointee producing a memo that declines to charge and simultaneously describes the man’s memory in terms the White House called unfair.
In process terms, that is an independent inspection producing a mixed result, which is what independent inspections look like. A captured one produces a clean result.
I am not saying the report is beyond criticism. The memory paragraph was unnecessary to the declination and Hur knew it would land the way it landed — the White House counsel objected before publication and he declined to change it. A prosecutor who includes a line he knows will dominate the news for a week has made a choice about more than the law.
But the favoritism reading requires the inspector to have been on the team, and he was not. Whatever the memo is, it is not a friendly document produced by an allied office. It cost the President more than any three months of clip coverage had, and it was produced under the authority of his own Attorney General.
That is the thing our side should sit with. The strongest evidence about capacity in three years came from inside the government, from a Republican prosecutor, in a document the government itself published. The system worked in the sense of producing the information. What it did not do was give anybody a mechanism to act on it.
Wheeling, WV
The line that did the damage was not the one about memory generally. It was the one about Beau.
Hur wrote that the President did not remember, even within several years, when his son died. That is the sentence that made the man come out to the podium on Thursday night and say how in the hell dare he raise that, and say he did not need anybody to tell him when it was appropriate to grieve.
I have been in a lot of rooms where a hard fact got put in front of somebody, and the reaction told you more than the fact did. That reaction told you the sentence had landed somewhere real.
Now, the honest complication, and I will put it in because I would want somebody to put it in against me. We do not have the transcript. We have a prosecutor’s summary of what happened in a room and the subject’s denial that it happened that way, and no tape. Beau Biden’s death is the single most consequential thing in that man’s life and the idea that he could not place it within a few years is extraordinary. Extraordinary claims deserve the underlying record, and the underlying record is being withheld by the Justice Department.
So I would not treat that particular sentence as established. I would treat it as an allegation by a credible official that has not been tested, and I would say loudly that the tape should come out.
What I do treat as established is what happened four days ago at the podium, because we all watched it. He came out to say his memory was fine and then named the wrong country and the wrong head of state in a single sentence about a war.
That is not a prosecutor’s characterization. That is film.
Between an unverified line in a memo and fifteen minutes of live television, I know which one I would put in front of a jury, and it is not the memo.
Tyler, TX
East Texas would ask why the same file produced two different kinds of paragraph, and I think the answer is simpler than the one our side is running with.
The claim is a two-track fitness standard: memory counted for one man and not the other. I have gone through it and I do not think the underwriting supports it.
A prosecutor assessing whether to charge always evaluates how the defendant will look to twelve people. That is not a fitness standard, it is the ordinary reasonable-prospect analysis every office in America runs. And it produces whatever the defendant actually presents.
One of these defendants sat for five hours and presented as an eighty-one-year-old man who lost his thread. The other has spent ten years telling the world he has a great memory, the best memory, and would have gone through the roof at any suggestion otherwise. There is no world in which a prosecutor writes a sympathy-of-age paragraph about Donald Trump, because Donald Trump would rather be convicted.
So the asymmetry is a fact about the two men, not about two standards, and I would rather concede that in February than have it produced against me in March.
What I would hold onto is the difference in the two files that Hur himself names, because it is the part that actually answers the documents question. He distinguishes the cases on obstruction, on refusal to return material after a subpoena, and on the moving of boxes. Those are aggravating facts on one side and absent on the other, and they are the reason for the different outcomes.
Where I still have a complaint is proportionality of exposure. A declination memo that runs to hundreds of pages and includes a character sketch of a sitting president is not the leanest possible document. Prosecutors who decline usually decline briefly. This one declined at length and the length is where the damage lived, and that was a choice.
But a choice is not a standard, and calling it one is how you lose the argument to somebody who has read the report.
Long Island, NY
I draft declination memoranda, so let me say where the memory language actually sits, because placement is the whole question here.
There are two distinct analyses in this report. The first is whether the evidence establishes the elements beyond a reasonable doubt, and Hur concludes it does not — the notebooks are arguably personal, the garage materials could have been placed by staff during a move, and willfulness is not proven. That is the declination.
The second is the prospect-of-conviction assessment, which every office performs and which necessarily includes a judgment about how the defendant will present. The memory language sits there.
So it is not an aside. Asides do not appear in the reasoning section. But it is also not the ground of decision, and anybody arguing that a president escaped charges because a prosecutor thought he seemed old is arguing against the document.
What makes this report unusual is not that it contains a presentation assessment. It is that the assessment was published. Prospect-of-conviction reasoning is normally internal — it goes in a memo to a supervisor and dies there. The special counsel regulations require a report to the Attorney General explaining the declination, and Garland released it substantially intact. That combination put a characterization of a sitting president’s cognition into the public record with the imprimatur of the United States.
Whether that was necessary is a fair argument and I lean toward no. The evidentiary analysis alone supported the declination. The presentation paragraph added nothing legally and everything politically, and Hur was told as much by White House counsel before publication and declined to change it.
The point I would press hardest is the one nobody is pressing. The transcript and the recording of a five-hour interview with the President of the United States exist, and neither has been released. We have a prosecutor’s characterization and the subject’s denial. That is an unusually poor evidentiary posture for a matter this consequential, and it is entirely within the Department’s power to fix.
Release the tape. Then this stops being an argument about a paragraph and becomes an argument about a record, which is where it belongs.
Cheyenne, WY
I keep books, and the entry here is smaller than the one people want to post.
The report declines to charge on the evidence. That is the primary entry and it takes up most of the document. The memory paragraph is in the part where a prosecutor asks how a jury would see the man, which is a normal thing for a prosecutor to ask and an unusual thing for the public to get to read.
So it is not an aside, and it is not the reason. It is a secondary line in a document that was published when it did not have to be.
On the two-track claim I would post a correction against my own side. The prosecutor was a Republican, appointed United States Attorney by Trump. He wrote the memory paragraph over the objection of the White House counsel. And he distinguished the two documents cases by name, on obstruction and on refusal to return material after a subpoena. That is not a man doing favors.
What I will post as established is the thing that happened four days ago, because there is no dispute about it. The President came out to say his memory was fine and then said the president of Mexico when he meant the president of Egypt.
That is not a characterization in a memo. That is fifteen minutes of tape, on the subject at issue, from the man himself, on the night he chose to answer it.
Whatever the memo did or did not do, the podium settled the question the memo raised. Settled it against him, in public, four days ago, and nobody has to take a prosecutor’s word for any of it.
