Biden's legal team went to Justice Department over memory comments

Robert Bauer front of a window showing a street scene below.

By COLLEEN LONG

Associated Press

Feb. 11, 2024 12:48 PM PT

WILMINGTON, Del. — President Biden’s personal attorney said Sunday he went to both the special counsel and the attorney general to register concerns over what he viewed to be pejorative and unnecessary digs at the president’s memory.

“This is a report that went off the rails,” Bob Bauer said on CBS’ “Face the Nation” on Sunday. “It’s a shabby work product.”

The special counsel was investigating whether the president mishandled classified documents during his previous positions as vice president and senator, and found this week that no criminal charges were warranted.

But in building his argument for why no charges were necessary, special counsel Robert Hur, who was appointed by Atty. Gen. Merrick Garland, detailed in part that Biden’s defense of any potential charges could possibly be that: “Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”

And then he went on to cite examples where investigators said the president’s memory lapsed, including over when his older son, Beau, had died. In particular, the comments about Beau Biden enraged the president, who has been very open about his grief over his son’s death, speaking often of him.

“How the hell dare he raise that,” Biden questioned angrily following the report’s release. “Frankly, when I was asked the question, I thought to myself, was it any of their damn business?”

Biden’s age has already been a concern for voters. Democrats are now answering the widespread questions about the 81-year-old president’s age and readiness by affirming that Biden is capable of being commander in chief and trying to discredit people who portray him as feeble. First Lady Jill Biden wrote a letter to donors Saturday questioning whether those comments were politically motivated; it fetched the most money in donations of any email since Biden launched his campaign.

Bauer, who is married to Biden’s top White House aide, Anita Dunn, said he raised concerns over the inclusion of these details to both Hur and Garland, which he viewed to be a violation of the Justice Department norms that essentially work to avoid prejudicing the public against people who are not charged with a crime. But the appeal failed.

“It’s evident that he had committed to make the report public the way that the special counsel had written it,” said Bauer.

Former Trump Deputy Atty. Gen. Rod Rosenstein defended the report on CNN’s “State of the Union” on Sunday.

“When you conduct a criminal investigation, some of the information that you uncover and some things that you evaluate don’t necessarily put the subject in a favorable light. And, ordinarily, that’s not publicized. And I think that’s a good thing,” he said. “It’s unfortunate that the special counsel process results in public reports that expose things that otherwise would remain sealed in Department of Justice files.”

The president sat down with investigators over several hours just as the Oct. 7 attack on Israel by Hamas happened. He said he answered the questions truthfully and to the best of his knowledge.

Bauer argued that what didn’t make it into the report were moments when the president deconstructed questions by investigators and when the special counsel notes that he’d be taking Biden through “events that are many years ago,” and notes that he should just give his best recollection.

He said the special counsel made a decision “to cherry pick in a very misleading way” what references made it in and what didn’t.

Bauer, too, suggested there was political pressure on the Justice Department, which is prosecuting former President Trump for refusing to turn over a trove of classified documents as well as his role in the Jan. 6, 2021, violence at the U.S. Capitol and has been excoriated by Trump and others as biased and that his prosecution represents a “two-tiered system of justice.”

Hur is a Republican, and a former U.S. attorney under Trump.

“So you have to wonder with those pressures impinging on the investigation from the outside knowing the attacks that Republicans have levied on the law enforcement process, did he decide we would have to ask that we reach the only legal conclusion possible and then toss in the rest of it to placate a certain political constituency?” Bauer asked.

The Justice Department has not commented on the criticism.