This story originally appeared in The New York Times Feb. 15, 2024
https://www.nytimes.com/2024/02/15/us/politics/joe-biden-special-counsel.html

White House Clashed With Justice Dept. Over Special Counsel Report

Previously undisclosed letters show a testy exchange over whether the Justice Department violated its own guidelines in releasing a report with comments disparaging President Biden.

By Charlie Savage

Charlie Savage has written about national security, presidential power and legal policy for more than two decades. He reported from Washington.
Feb. 15, 2024 Updated 5:21 p.m. ET

The White House clashed with the Justice Department in the run-up to the release of a special counsel report last week about President Biden’s handling of classified information, previously undisclosed correspondence shows.

The letters, obtained by The New York Times, show that a top Justice Department official rejected complaints from Mr. Biden’s lawyers about disparaging comments in the report regarding the president.

The lawyers wrote to Attorney General Merrick B. Garland the day before he released the report by the special counsel, Robert K. Hur. They raised objections to passages in the report in which Mr. Hur suggested that Mr. Biden’s memory was failing and questioned some of his actions, even though the special counsel had found no basis to prosecute the president.

The lawyers said Mr. Hur’s comments “openly, obviously and blatantly violate department policy and practice,” the letters show.

The next day, as the department was preparing to make the report public, Bradley Weinsheimer — the department’s senior career official, or nonpolitical appointee, who deals with ethics complaints or appeals of department decisions — wrote back rejecting their criticism. He insisted that the comments in the report “fall well within the department’s standards for public release.”

Mr. Hur had permitted Mr. Biden’s White House and personal lawyers to review a copy of the report before turning it in to Mr. Garland, to allow for any comments and to see whether there was anything Mr. Biden might want to assert executive privilege over. While Mr. Biden did not invoke the privilege, the review prompted the lawyers’ complaints to Mr. Garland.

The disclosure of the sharp exchange adds new detail to how the White House sought to head off what officials knew would be a political furor set off by the release of Mr. Hur’s report — and how the Justice Department declined to change course.

Among other things, the letters show that the White House and Justice Department sparred over whether the report was comparable to a 2016 news conference in which James B. Comey Jr., then the F.B.I. director, rebuked the Democratic presidential nominee that year, Hillary Clinton, over her use of a private email server, even as he announced that he was recommending against prosecuting her.

They also underscored long-simmering tensions between the White House and the Justice Department over decisions made by Mr. Garland, even as the Biden administration has sought to restore the norm of Justice Department investigative independence from White House influence after the Trump administration.

In registering their objections, Mr. Biden’s lawyers stopped short of asking Mr. Garland to withhold anything from the report or to instruct Mr. Hur to rewrite it.

Mr. Hur is scheduled to testify publicly on March 12 in front of the House Judiciary Committee, according to a person familiar with the matter. Republicans have seized on Mr. Hur’s characterization of Mr. Biden as unable to remember important dates from his own life to bolster their assertions that he is too old to serve another term.

The White House and the Justice Department declined to comment on the letters.

Mr. Garland said last year that he would make the eventual report public when he named Mr. Hur, a former Trump administration political appointee, as a special counsel to investigate how classified documents from Mr. Biden’s vice presidency had ended up at an office he had used in Washington and his home in Delaware.

Mr. Hur’s nearly 400-page report concluded that there was no case to bring against Mr. Biden. While it said there was some evidence consistent with a conclusion that Mr. Biden had willfully retained classified material without authorization while out of office, it said the facts fell short of proving that he had done so — and that other evidence was consistent with innocent explanations.

But Mr. Hur also used his report to denigrate Mr. Biden as “totally irresponsible” for keeping at his home diaries from his vice presidency that contained classified information, like accounts of meetings at which national security or foreign policy matters had been discussed. Mr. Hur made that assertion even as he acknowledged that other former presidents, including Ronald Reagan, did the same and that the Justice Department has known about that practice without objecting to it.

And — particularly explosive amid Mr. Biden’s re-election campaign — Mr. Hur repeatedly portrayed the president as doddering, including calling him an “elderly man with a poor memory” who has “diminished faculties in advanced age.”

Mr. Biden’s lawyers, who were present for Mr. Hur’s five-hour interview with Mr. Biden, have called those and similar comments in the report both inaccurate and gratuitous, noting that Mr. Hur found he could not prove a case against Mr. Biden anyway for other reasons.

Mr. Hur obtained a recording of Mr. Biden telling a ghostwriter, while living in a rented house in Virginia in 2017, that he had just found “all the classified stuff downstairs.” The special counsel tried to prove that Mr. Biden had been referring to a specific set of files about the Afghanistan war that were found with a jumble of unrelated material in cardboard box in his garage at his house in Delaware. If so, the recording would be strong evidence that Mr. Biden had knowingly retained those files while out of office.

But Mr. Hur could not find evidence to prove that theory. At one point in discussing why he had declined to bring a charge based on that theory, he provided a reason to say Mr. Biden has memory problems: He speculated that Mr. Biden “could have come across them” in his Virginia house but then “forgotten about them soon after,” which he said could convince jurors that he did not hold onto them willfully.

But elsewhere Mr. Hur made clear that he lacked sufficient evidence to bring a criminal charge based on that theory, regardless of Mr. Biden’s memory. He could not prove the Afghanistan war files had even been in the Virginia house, and he was unable to determine who had put them in the box. He acknowledged the available facts were also consistent with a scenario in which “they could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president.”

Mr. Biden said that on that recording, he had actually been talking about having found something else — a sensitive but unclassified memo he had written to Mr. Obama in 2009 about the war — and that he believed the documents must have been tossed into the box by people moving his belongings out of the vice president’s residence.

Since the report’s release, some commentators have compared Mr. Hur’s decision to include his view of Mr. Biden’s mental faculties to Mr. Comey’s disparagement in 2016 of Mrs. Clinton. Mr. Comey called her “extremely careless” for using a private email server even while saying that “no reasonable prosecutor” would bring a criminal case against her over the matter.

An inspector general report later found that Mr. Comey had violated “well-established department norms” that law enforcement officials should not be “essentially, ‘trashing’ the subject of an investigation with uncharged misconduct” that did not warrant prosecution.

The sharp exchange of letters shows that Mr. Biden’s legal team had brought that very comparison to Mr. Garland’s attention before he decided to follow through on his vow to publicly release the report.

“Mr. Hur’s criticism of President Biden mirrors one of the most widely recognized examples in recent history of inappropriate prosecutor criticism of uncharged conduct,” wrote the lawyers — the White House counsel, Edward N. Siskel, and Mr. Biden’s personal lawyer, Bob Bauer — to the attorney general in a three-page letter dated Feb. 7.

In his response on behalf of the department the next day, Mr. Weinsheimer rejected the comparison to Mr. Comey. He said the context of Mr. Hur’s comments made them “appropriate” because it was his job as a prosecutor to make — and explain — decisions on whether to charge at the end of an investigation. Mr. Comey’s disparagement of Mrs. Clinton as F.B.I. director, he said, was “not a comment offered in explanation of the evidence and its application to the law.”

“The identified language is neither gratuitous nor unduly prejudicial because it is not offered to criticize or demean the president; rather, it is offered to explain Special Counsel Hur’s conclusions about the president’s state of mind in possessing and retaining classified information,” Mr. Weinsheimer wrote.

In a five-page follow-up letter to Mr. Weinsheimer on Feb. 12, Richard Sauber, a White House lawyer, and Mr. Bauer forcefully rejected his response. They argued that Mr. Comey had “of course” made his comment about Mrs. Clinton to explain that he believed the evidence showed her actions were “extremely careless” but did not cross the line into chargeable conduct.

And, they noted, the inspector general report had actually laid out a general principle that “department prosecutors” — not just F.B.I. officials — should not “insinuate or allege that an individual who has not been charged with a crime is nevertheless guilty of some wrongdoing.”

The White House also attached to its Feb. 7 letter to Mr. Garland two earlier letters that Mr. Sauber had sent to Mr. Hur and his deputy in September and October. The first had objected to Mr. Hur’s making Mr. Biden’s vice-presidential diaries part of the focus of the criminal investigation, given precedents like Reagan.

The second asked Mr. Hur, in writing his report, to scrupulously adhere to “principles of fundamental fairness” and policies about not disclosing information that would unfairly tarnish anyone not being charged with a crime, citing the likelihood that Mr. Garland would make his report public.

In that sense, the exchange underscored a disconnect between department regulations for special counsel investigations, which were written in 1999 amid bipartisan consensus that a previous independent counsel law had let special investigators run amok, and how such inquiries have worked in practice. The 1999 rules were developed in the wake of the investigation into President Bill Clinton conducted by Ken Starr, which morphed from scrutiny of a land deal into a lengthy and salacious report about an extramarital affair.

The regulations authorize an attorney general to block a special counsel’s action if it is “so inappropriate or unwarranted under established departmental practice that it should not be pursued.” But in practice attorneys general face significant political pressure to not interfere, lest they be accused of a cover-up.

And while the regulations call only for a special counsel to write a “confidential” report to the attorney general at the end of an inquiry explaining any decisions on charging, it has become the norm for special counsels to write lengthy narrative reports that are clearly intended to be made public — and that attorneys general have disclosed.

In defending Mr. Garland’s decision to go forward with releasing the Hur report, Mr. Weinsheimer argued that it was appropriate to do so because the language to which the Biden team was objecting went “directly” to detailing the basis for his decision not to bring charges in a high-profile and sensitive matter of national controversy.

“The report addresses whether the president, as a private citizen, mishandled classified information in violation of criminal laws,” Mr. Weinsheimer wrote. “This sits near the apex of the public interest. The report and its release, including the identified language, are consistent with department policies and practice.”

In their Feb. 12 follow-up letter, Mr. Sauber and Mr. Bauer also cited criticism of the department’s actions from three former high-level officials in previous Democratic administrations: former Attorney General Eric H. Holder Jr., former Deputy Attorney General Jamie Gorelick, and Preet Bharara, the former U.S. attorney for the Southern District of New York.

Mr. Hur’s choice to include the disparaging comments “ — and it was undoubtedly a choice — is inconsistent with a good-faith attempt to comply with the special counsel regulations or to live up to the department’s tradition of refraining from criticism of uncharged conduct,” Mr. Sauber and Mr. Bauer wrote.

Luke Broadwater contributed reporting.

Charlie Savage writes about national security and legal policy.More about Charlie Savage

A version of this article appears in print on  , Section A, Page 15 of the New York edition with the headline: White House Had Testy Exchange With Justice Dept. Over Special Counsel’s Report