An investigation in the middle of a presidential campaign wraps up with no charges, and yet the words of the investigator hurt far more than they help. That is a scenario that appears to be playing out this week with special counsel Robert Hur deciding President Biden shouldn't be charged with willfully retaining classified documents, while also including language in his report about Biden's at-times-faulty memory, aggravating a preexisting political challenge for Biden.
For people who were involved with Hillary Clinton's failed 2016 presidential campaign, the echoes of then-FBI Director James Comey's press conference on July 5, 2016, are hard to miss.
He spoke for 12 minutes, describing Clinton as, among other things, "extremely careless" before getting to what he was there to announce.
"Our judgment is that no reasonable prosecutor would bring such a case," Comey said of the FBI's investigation into Clinton's use of a private email server while secretary of state.
On its face, it looked like good news for Clinton, but Jennifer Palmieri, who was the campaign's communications director, said it was probably the single most damaging day of the campaign.
"The ad hominem attacks against her were ... brutal," Palmieri recalled.
She said the campaign was blindsided by the Comey press conference and that "irredeemable damage" was done to Clinton's election bid.
In his report, special counsel Hur said he didn't have the evidence to prove beyond a reasonable doubt that Biden willfully retained classified documents. But the nearly 400-page report didn't stop there. It also described apparent memory lapses during his interviews with the president. And it included a sentence that immediately ricocheted around the political world — that Biden comes across as "a sympathetic, well-meaning, elderly man with a poor memory."
Republican politicians immediately took to the airwaves to question Biden's mental competency, citing Hur's report. It was a predictable reaction and one that allowed Biden's opponents to highlight what is perhaps his greatest political liability. Public polls show even before this political storm, more than three-quarters of voters were concerned about Biden's mental and physical health.
Democratic Rep. Dan Goldman of New York said Hur's report has a lot in common with what Comey did in 2016.
"These are criminal investigators who have stepped out of the normal role of sticking with the facts in evidence and analyzing whether the elements of a crime are met," said Goldman, who is a former federal prosecutor and Biden ally.
He said both Comey and Hur may have felt political pressure to prove their independence and not to seem like they were going easy on Democrats.
"Special counsel Hur went out of his way to editorialize and include extraneous information that was not relied upon or relevant to his ultimate charging decision," Goldman argued.
This is a point the White House argued on Friday, with Vice President Harris going so far as to describe Hur's report as "clearly politically motivated." Hur hasn't weighed in on why he included that information. But when he was named he promised to conduct the probe "with fair, impartial, and dispassionate judgment."
Going back to the case of 2016, the Justice Department inspector general later found that Comey violated long-standing department practice and protocol by going on at length about uncharged conduct. That's what Goldman said Hur did in this case as well.
However, the special counsel regulations required Hur to explain his charging decisions in a report to the attorney general. It doesn't say anything about how thorough that report needs to be, but recent history indicates the report is written with the understanding that it is likely to be released to the public.
Biden's team is working overtime to disqualify special counsel Hur, pointing out among other things that he served in the Trump administration and isn't a doctor and is not qualified to assess the president's mental acuity.
They're also trying to prove to the public that Biden is fully capable and should be elected to serve another four years. It's a race to stop Hur from becoming the Comey of 2024.
But the damage may already be done.
"I think this will have the same kind of impact" as Comey in 2016, said Frank Luntz, a pollster who spent years working for Republicans.
Luntz recently conducted a focus group with people who voted for Biden in 2020 but aren't sure they can do it again.
"And the age thing is the No. 1 concern, more than immigration, more than inflation," Luntz said.
Luntz also said this report gives credibility to that worry, providing validation from someone who isn't a politician.
"It's from an independent source, saying this guy is not prepared for four more years," Luntz said. "I think this is pivotal."
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