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**FEBRUARY 9, 2024**

On the Prospect website

Blowing the Door Off Boeing's 'Epstein Deal'

The lawyer who busted open Jeffrey Epstein's sweetheart deal sues DOJ
for the goods on Trump's slimy deferred prosecution agreement with the
737 manufacturer. BY MAUREEN TKACIK

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Durbin Must Enforce His SCOTUS Investigation Subpoenas

The Court's own precedents show that its corruption scandals are
exactly why Congress has subpoena power. BY MAX MORAN

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Bayard Rustin-Out of the Shadows

A new movie, a new book, and an old nonviolent warrior now given his
rightful recognition BY DAVID KIRP

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My Very Own American Dictatorship

If I ruled the world ... BY FRANCESCA FIORENTINI

Kuttner on TAP

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**** A Partisan Hit Job on President Biden

Special Counsel Hur's gratuitous digs at Biden's age and memory

Special Counsel Robert Hur, in the course of explaining why he was not
filing charges against President Biden for taking home some classified
documents, wrote a 345-page report

with gratuitous and nasty asides about Biden's age and memory. It
reads like something written by the Trump campaign as a hit job. You'd
almost think Hur was a Republican operative.

Well, in fact Hur was Donald Trump's appointee to serve as U.S.
attorney for Maryland, a post he held from 2018 to 2021. Before that,
Hur was principal associate deputy attorney general in the Trump Justice
Department. He is a self-identified Republican.

So why did Attorney General Merrick Garland appoint a partisan
Republican as special counsel to investigate President Biden, when
dozens of other well-qualified people were available? Good question.
Garland, once again, has proven to be Biden's worst appointee.

Out of a colossally naïve sense of fairness, at a time when Republicans
are out for blood, Garland also dithered for more than a year before
appointing Special Counsel Jack Smith, in November 2022, to investigate
Trump's most flagrant and prosecutable breach of the law, his
attempted coup of January 6, 2021, where all the evidence was in plain
view. Garland acted reluctantly only after the House Select Committee on
January 6th did all the investigative work and provided both the
pressure and the road map.

Based on the facts, Hur should have written a short report pointing out
that Biden's actions did not rise to the level of criminal offenses.
That, after all, was his conclusion and should have been the headline.

Instead, Hur delivered a book-length indictment of Biden's age and
memory, going out of his way to offer politically damaging and snarky
assertions, and quotable one-liners. Explaining, disingenuously, why a
jury would be unlikely to convict (a separate question from Hur's own
conclusion that Biden had not committed an indictable offense), Hur
imagines that a jury would view Biden as "a sympathetic, well-meaning,
elderly man with a poor memory." But these are Hur's own words; the
jury is imaginary.

Hur can't quite make these patronizing assertions himself, so he puts
them in the mind of a jury of his own invention. You can just imagine
Hur savoring the gimmick, the language, and relishing the political
damage.

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The timing was also suspicious. Hur picked a moment when Republicans
were reeling from their divisions over border policy and Ukraine; their
House and Senate leaders were losing the confidence of their respective
caucuses; and the toadying to Trump had become its own embarrassment.
The report put the spotlight back on Biden's vulnerabilities and
Democratic divisions.

This document, as planned, led to a media feeding frenzy. At a hastily
called press conference, Biden expressed outrage that Hur would contend
that he didn't remember when his son Beau died, an assertion as
implausible as it is deliberately insulting. On the whole, Biden did not
do badly on his feet, except when he momentarily referred to Egyptian
president Sisi as the president of Mexico. But Biden gave a good
accounting of the complex Gaza diplomacy, and the Mexico slip pales
compared with Trump's prolonged confusion of Nikki Haley with Nancy
Pelosi.

The only good thing about the report is that it was released in
February, not as an October surprise. Republicans may be tempted to try
to keep this going, maybe by calling Hur to testify. But be careful what
you wish for.

Trump's refusal to return classified documents, deliberately stashed
at Mar-a-Lago and taken for reasons of vanity or possible monetary gain,
is far more serious than Biden's forgetting about a box of documents
in his garage, material that he returned. And if we focus on comparative
cognition, Biden wins.

The Hur affair continues a pattern of Democratic leaders naïvely
appointing Republicans to sensitive criminal justice positions that
Republicans exploit for partisan advantage. Hur's report on Biden is
an eerie echo of James Comey's playbook that seriously, perhaps
fatally, damaged presidential candidate Hillary Clinton.

In his statement of findings
,
released on July 5, 2016, then-FBI director Comey said he found no basis
for a criminal referral in the case of Clinton's handling of
classified emails.

But then he rebuked Clinton, in an extended and gratuitous
tongue-lashing, for being "extremely careless." The exoneration was
forgotten and the carelessness became the headline.

Comey, like Hur, was a partisan Republican, naïvely appointed by a
Democrat (Barack Obama) who imagined that the gesture might be
reciprocated. Now even more than back then, Democrats' attempts at
bipartisan comity, most recently on border legislation, blow up in their
faces, especially with Republicans in thrall to Trump.

Moral: Do not take a peashooter to a knife fight. And do not appoint
people like Merrick Garland.

And if that lesson comes too late because of Garland's mishandling of
the most sensitive matters of how to investigate presidential
misconduct, Biden will have himself to blame. The rest of us will pay
the price.

~ ROBERT KUTTNER

Follow Robert Kuttner on Twitter

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