Despite the media attention given to the fuming in some quarters over the report of Robert K. Hur – the special counsel who investigated President Biden – and the gloating in some others, it is important to keep firmly in mind what Mr. Hur didn’t say, as well as what he did say, in the course of explaining why he didn’t recommend prosecuting the president.
Mr. Hur did not say that a befuddled and confused Mr. Biden accidentally kept secret documents belonging to the government or that he mistakenly thought he was allowed to take them, or that he was incapable of forming a criminal intent to take them.
To the contrary, what Mr. Hur did say was that Mr. Biden had “willfully” retained and shared classified material “implicating sensitive intelligence sources and methods.”
According to the Merriam-Webster dictionary “willfully” means “obstinately,” “often perversely self-willed,” “intentionally,” “done deliberately.”
So, why the decision not to bring Mr. Biden to trial? According to Mr. Hur, “Mr. Biden would likely present himself to a jury as he did during our interview with him, as a sympathetic, well-meaning, elderly man with a poor memory.”
In addition, Hur wrote, “It would be difficult to convince a jury” that “a former president well into his eighties” was guilty of a crime that “requires a mental state of willfulness.”
In a word, jurors would have a tendency to like him. To be sure, we are mindful that prosecutors must ordinarily have a measure of discretion and not have to waste their time with prosecutions that have little chance of success. But this approach has special resonance in the Biden document case, if only in the light of prosecutors having turned the notion of prosecutorial discretion on its head with respect to Donald Trump. They have demonstrably come up with novel legal theories and exploited every conceivable statutory ambiguity in order to bring criminal and civil actions against him in jurisdictions where he was believed to be so unpopular, as to be more likely than not to be convicted of allegations made against him, however wanting.
Mr. Trump is the subject of a major lawsuit raising the issue of his immunity from prosecution which will soon likely be in the U.S. Supreme Court. We hope the Court will seize that case as an opportunity to emphasize that maybe presidents really have to be somewhat above the law in order to be left to do their jobs without having to worry about the machinations of opportunistic politicians not willing to rely on the electoral system to get their way.
