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Biden classified memos report re-ignites debates about dual justice, ‘diminished’ president

Famed liberal icon Alan Dershowitz decries Hur decision when compared to treatment of Trump: "You can't have two different laws for similar acts. You have to have one single standard of justice."

Published: February 8, 2024 11:25pm

Special Counsel Robert Hur’s final report on Joe Biden’s willful retention and dissemination of highly classified information is rocking Washington, re-igniting concerns of a dual system of justice while putting the full weight of the government behind the notion that America is currently being served by a president with “diminished faculties.”

Hur’s 388-page report released Thursday may have spared Biden the spectacle of a criminal prosecution similar to that his Justice Department imposed on Donald Trump, but it delivered a devastating blow to the 46th president’s re-election hopes by going out of its way to explain criminal charges weren’t levied in part because jurors might see Biden as a dottering, forgetful old man incapable of criminal intent.

“Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur wrote in explaining his rational for declining prosecution. “…It would be difficult to convince a jury they should convict him – by then a former president who will be at least well into his eighties – of a serious  felony that requires a mental state of willfulness.”

Later, Hur added for good measure he believed Biden suffered from “diminished faculties in advancing age.”

The political fallout was instant and severe.

Biden’s lone remaining Democrat challenger for the 2024 presidential nomination, Rep. Dean Phillips of Minnesota, said Hur’s report exposed a “sad” reality that “the President cannot continue to serve as our Commander-in-Chief beyond his term.”

Republicans were even more pointed. Rep. Claudia Tenney, R-N.Y., wrote a letter Thursday night urging Attorney General Merrick Garland to consider initiating proceedings inside the Cabinet to remove Biden as incapacitated under the 25th Amendment.

Other GOP lawmakers made clear this is an issue that will linger powerfully until Election Day.

“Every time he (Biden) talks, he's confused,” Rep. Rich McCormick, R-Ga., a Marine and former emergency room doctor, told Just the News. “If he's not taken by the arm and shown where to go, he doesn't know where to walk. He could be at the White House and try to go through the wrong entrance. He could be on stage and not know which direction to go. He doesn't know who's standing next to him. He doesn't even know where he's going.

“This is just a confused old man. Now, the whole problem with the whole prosecution issue is I'm more concerned about presidential decisions,” he added. “We're talking about a guy who has the keys to nuclear arms, you're talking about a guy who makes decisions on who to attack and who to defend and who to support and has to make a defense of our policy – foreign and domestic.

"This is a guy who couldn't sell his his plan to anybody right now. I think the Democrats are starting to realize that in a very real way.”

Biden’s own team was so stung by Hur’s rationale that it asked DOJ to strike the observations about the president’s age and memory, but it failed. Akin to Richard Nixon having to argue he wasn’t a crook during Watergate, Biden himself was forced to go on national television just hours after Hur released his report to insist he is fit to be president, an act no politician running for re-election ever wants to face.

“My memory is fine,” Biden said on national TV, also expressing indignation about one passage in Hur’s report that noted Biden couldn’t remember the year his son Beau died. “How in the hell dare he raise that?” the president asked.

But even as he tried to make his case, Biden stumbled badly, stopping mid-sentence when he forgot the name of a church in an anecdote and mixing up an Egyptian leader for the head of Mexico.

Even before Hur’s report described Biden’s memory as “worse” and “hazy,” the president was facing questions about his mental faculties.

Earlier this week, he mistakenly claimed to talk to two world leaders who have been dead for decades. And a Monmouth University poll last fall found a stunning 76 percent of voters think Biden is too old to effectively serve a second term.

The politics of age aside, the report also gave an unflattering view of Biden’s conduct, concluding that the president knowingly and willfully kept classified information of the highest sensitivity and was aware of it as early as 2017.

He did not return the documents for years and in the interim shared classified information with the ghostwriter for his book, who did not have a security clearance, Hur revealed.

"Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen," the report concluded.

You can read the full report here.

Hur found that the materials Biden secreted from the White House were highly sensitive, and included "marked classified documents about military and foreign policy in Afghanistan and notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence source and methods."

Two of those documents – one classified “secret” and the other “confidential” – are likely to become the focus of Biden’s impeachment inquiry.

Both documents involve conversations Biden had with Ukraine’s prime minister in December 2015, the very month the then-vice president began an effort to use the withholding of $1 billion in U.S. aid to coerce that country to fire its chief prosecutor, who at the time was investigating the Burisma Holdings energy firm that was paying Hunter Biden and his business partner millions.

“Oh, yeah, it's like, let's add that one to the very long list of documents that we need to get our hands on,” Rep Eli Crane, R-Ariz., told the "Just the News, No Noise" television show Thursday evening when asked about the classified Ukraine memos. “You know, we're gonna continue to try and expose what this President and his family have been doing. This is just one more document. It just goes to show that we can't rest on what we've done in the past. We got to keep plowing forward. The American people deserve it.”

Dozens of Republicans said Thursday night that Hur’s decision not to charge Biden – because he was feeble – even though there was willful evidence of keeping and sharing classified secrets provided fresh proof of a dual system of justice that has charged Trump for similar crimes. Those arguments also found an ally among Biden supporters, like Harvard law professor emeritus Alan Dershowitz.

"You can't have two different laws for similar acts," Dershowitz told Just the News. "You have to have one single standard of justice."

Alina Habba, one of Trump's lawyers, told Fox News host Sean Hannity on Thursday night she expects Trump's legal team to use the Hur report to argue the 45th president has been subjected to unequal justice.

Reps. McCormick and Crane agreed the issue of dual justice is growing louder, even breaking recently into sports and entertainment culture where former critics of Trump are now arguing Democrats have gone too far.

“I think that once again, we see the double standard. And I think this is why you continue to see the polls go the way that they are for President Trump,” Crane said. “They realize the heavy double double standard across the board that, you know, he's been up against. And I think it's going to really hurt President Biden come November.”

Added McCormick: “This is an unbelievable double standard of justice, and it shouldn't be excused.”

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