The White House strongly objected to the comments made about President Joe Biden’s memory in the special counsel report, and they conveyed their concerns to Attorney General Merrick Garland the day before the report was made public.
In a recently revealed letter, White House Counsel Ed Siskel accused Special counsel Robert Hur of openly, obviously, and blatantly violating the Justice Department’s own policies.
The White House had previously expressed its opinion on Hur’s report, indicating that it wasn’t the first time. A few months prior, after Biden had been interviewed by Hur, another lawyer from the White House had advised the special counsel to ensure that his final report was “economical.” The lawyer argued that a concise and straightforward approach, without any additional commentary, would align with the principles set by the Justice Department.
Hur disregarded that advice and instead penned a report that sent shockwaves through Washington. The report provided intricate accounts of Biden’s forgetfulness and characterized the president as a well-intentioned yet elderly individual with a weak memory. Though Hur determined that criminal charges were unwarranted for Biden’s mishandling of classified documents prior to assuming office, the report inflicted significant political harm.
The draft of the letter was reviewed by the president’s lawyers before it was publicly released on February 8th, and they had objections. On February 7th, the president’s personal lawyer, Bob Bauer, joined Siskel in sending the letter directly to Garland. They did not request any action from Garland, but they made sure to document their concerns.
The lawyers received a prompt response the following day from Bradley Weinsheimer, the top career official of the department. Weinsheimer defended the contents of Hur’s report and the decision to release it to the public, stating that the report was of significant public interest.
After the report was released, the president’s lawyers expressed their disapproval both publicly and privately. On February 12, they responded to Weinsheimer in another letter, accusing him of showing a “disturbing lack of concern” for the Justice Department’s ability to unfairly harm innocent individuals.
The president’s lawyers and the Department of Justice (DOJ) engaged in a correspondence that has not been previously reported. These letters reveal that the White House actively expressed its opinions on how the Justice Department’s rules should have influenced Hur’s work. Furthermore, the documents demonstrate that Hur received unwavering support from the department’s highest-ranking career official, who some former officials have referred to as “the conscience of the Department.”
The letters obtained by POLITICO shed light on the stark contrast between the Justice Department and the White House regarding Hur’s report. Biden has expressed his frustration with Garland, as he had campaigned on reinstating the department’s independence and upholding its norms. It is ironic that the same White House is now accusing the department of violating those very norms.
The White House and the Justice Department spokespersons chose not to provide any comments on the matter. Similarly, Bauer also declined to comment, as confirmed by a spokesperson.
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On October 31, 2023, Richard Sauber, a White House lawyer, wrote an eight-page letter to Hur and his deputy, discussing the Justice Department regulations that oversee special counsels. In the letter, Sauber contended that these regulations, along with their historical context, indicate a disapproval of producing extensive and detailed reports.
Sauber highlighted the significance of previous politically sensitive prosecutions that took place before 1999 when the current special counsel regulations were implemented. In the past, the attorney general had the authority to appoint independent counsels to handle delicate investigations, including those related to President Bill Clinton. These independent counsels would meticulously document their findings and produce detailed reports, irrespective of whether any charges were filed.
The reports faced criticism for unfairly tarnishing the reputation of those involved, prompting Congress to allow the statute to expire. Subsequently, the Justice Department developed special counsel regulations to address comparable investigations of a sensitive nature.
In his letter to Hur, Sauber contended that the regulations explicitly instruct a special counsel to generate “solely a summary final report.” Sauber further emphasized that the purpose of this report was solely to assess the special counsel’s performance.
He added that it is not meant as a vehicle to provide accountability for the subject of the investigation.
Sauber’s letter referred to an unexpected source: a 2019 article authored by former independent counsel Ken Starr for The Atlantic. In the article, Starr argued that special counsel Robert Mueller, who conducted an investigation into the connections between Russia and Donald Trump’s 2016 campaign, should maintain silence. However, Mueller did not adhere to this advice. Instead, he released a comprehensive report spanning over 400 pages, which indicated the possibility of then-President Donald Trump’s involvement in obstruction of justice.
Sauber argued that Hur’s report should adhere to the Justice Department’s principle of avoiding the denigration of individuals outside of the courtroom. He emphasized that maligning people without affording them the opportunity to respond in court was fundamentally unfair. Additionally, the Justice Department’s regulations stipulated that the final report should be “limited” and “summary” in nature.
In his writing, he emphasized the importance of an economical report. He believed that the report should only contain factual information that is necessary for making a charging decision. Facts or events that are not essential to the decision should not be included.
Hur’s team was requested by Sauber to allow the president’s lawyers to review a draft of the report before its public release.
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In just three months, Hur completed his extensive report on Biden’s investigation. The report spanned over 300 pages, providing a detailed account of his findings. Within its pages, the special counsel included photographs of classified documents found in unexpected places, such as a garage near exercise equipment and a file box underneath a TV. Notably, the report also noted that even if Biden were hypothetically charged with mishandling classified material, jurors would likely acquit him due to his advanced age and forgetfulness, viewing any alleged wrongdoing as unintentional.
By February 5th, Sauber and Bauer had thoroughly reviewed Hur’s draft report. They responded by sending him a strongly worded letter expressing their disapproval. Hur included a copy of this letter in his final report, which was subsequently published alongside it.
Meanwhile, Siskel, the White House counsel, directly approached Garland to express his thoughts. On February 7th, while White House lawyers were examining Hur’s report for any potential executive privilege concerns, Siskel and Bauer composed a letter, which has yet to be disclosed, to Garland, outlining their concerns regarding the document.
Hur’s characterization of Biden’s retention of classified material at his home after he ended his time as vice president in 2017 was met with objections. Siskel and Bauer countered by stating that prior presidents had engaged in the same practice. They argued that Hur’s criticism was hypocritical, comparing it to the actions of then-FBI Director James Comey, who accused Hillary Clinton of carelessness with classified documents but also concluded that no charges were warranted.
The critics also expressed their disagreement with Hur’s characterization of Biden’s mental sharpness, stating that it was highly unjust.
The authors of the statement defended the President’s powers of recollection, stating that it is unwarranted and baseless to make a global and negative judgment on his abilities.
The letter concluded by extending an invitation to Garland for a discussion on the matters at hand. Additionally, it accused Hur of openly and blatantly deviating from established practices within the Justice Department.
On February 8th, the Department of Justice responded to the letter through Weinsheimer, the associate deputy attorney general. Weinsheimer, a long-serving civil servant at the department, handles politically sensitive issues and ethical concerns. Over the years, he has addressed complaints from Hunter Biden’s lawyers regarding special counsel David Weiss and from Trump’s lawyers regarding special counsel Jack Smith.
In response to your arguments, the Department has concluded that the report, as it was submitted to the Attorney General and subsequently released, adheres to legal requirements and Department policy. Weinsheimer, in his communication to the president’s lawyers, expressed this conclusion.
According to Weinsheimer, the purpose of including Hur’s unflattering depiction of Biden was not to be gratuitous. Rather, it was to provide an explanation for Hur’s perception of Biden’s state of mind when he retained classified information. Weinsheimer emphasizes that Hur’s actions were not similar to Comey’s, as Comey acted outside of his authority, whereas Hur was given specific directives to make a decision regarding potential criminal charges.
According to him, the report complied with the department’s policy and practice, and it was publicly released.
According to the conclusion reached by the investigator, the report examines whether the President, in his capacity as a private citizen, improperly handled classified information, which would be a violation of criminal laws. This matter is of utmost importance and is of great interest to the public.
According to an anonymous source familiar with the matter, Weinsheimer’s letter reached the White House shortly before the report became public on the afternoon of February 8th.
The release of the report had a seismic impact, with certain House Republicans going as far as urging Biden’s Cabinet to invoke the 25th Amendment and oust him from his position.
The White House team quickly sprung into action, with Vice President Kamala Harris describing the document as “gratuitous, inaccurate, and inappropriate.” Bauer, in a CBS interview, criticized it as a “shabby work product.” Additionally, Biden allies on Capitol Hill and cable news outlets strongly condemned Hur’s actions.
The White House didn’t just respond publicly to the report. Bauer and Sauber, in their response to Weinsheimer, disputed his distinction between Comey and Hur as “plainly inaccurate.” They expressed strong disagreement with his assessment.
The authors of the letter expressed their concern about the justification of Special Counsel Hur’s actions. They pointed out that the argument that Hur held a different position than former Director Comey contradicts the principles of the Department. They also criticized the lack of concern for the potential harm that the policy aims to prevent.
According to the department, Hur’s report contained statements that were deemed unnecessary, inflammatory, and prejudicial. They also emphasized that these statements contradicted the department’s long-standing traditions.
The report’s political repercussions and the ongoing debate over its legitimacy will persist. The House Judiciary Committee, led by Republicans, is actively pursuing access to the underlying materials referenced in the report. Additionally, it is anticipated that the special counsel will provide testimony before Congress.
“It’s a challenging situation,” expressed a former Department of Justice (DOJ) official who preferred to remain anonymous to freely express their thoughts. “When the White House expresses concerns and implies that you may be undermining the president, it’s not an easy decision to make. Such weighty matters are not taken lightly. However, these officials also recognize the importance of making a fair judgment based on the facts and merits of the case. They fulfilled their duty by making an impartial decision.”
