Special counsel Robert Hur did a great service to America last week in two ways that fundamentally and irreversibly transform the Presidential race. As a result, just like in Hillary Clinton’s ‘3 a.m. phone call’ television ad in the 2008 contest, the iPhone is buzzing in Barack Obama’s Martha’s Vineyard compound, and he had better answer it.
Number one, by declining to charge President Biden for “willfully retain[ing]” classified materials, Hur blew up any pretense of fairness when it comes to how Biden’s Department of Justice treats its own boss, while it throws the book at President Trump.
Not only did Hur decline to prosecute Biden, he made clear that the facts surrounding Biden’s retention of documents were far worse – not even in the same solar system – compared with President Trump’s case.
To review the bidding:
– As a former President, Trump was covered by the Presidential Records Act that allows the chief executive to retain some personal records from his time in office, as it did with former President Bill Clinton in the infamous “socks case,” as well as “broad authority to formally declassify most documents that are not statutorily protected, while they are in office,” according to the American Bar Association. As a former senator and vice president, Biden was not covered by the Presidential Records Act, and has no case whatsoever for retaining classified personal materials from his time in either office.
– Biden had no protection whatsoever over his custody of the classified documents he possessed illegally, many of which he squirreled away in his unlocked garage next to a non-electric Corvette. President Trump’s documents were kept under lock and key at his Mar-a-Lago estate that even some in the media acknowledge is “built like a fortress,” and guarded around-the-clock by Secret Service officers.
– Hur’s report noted that Biden’s documents were recovered by FBI agents “from the garage, offices, and basement den in Mr. Biden's Wilmington, Delaware home,” and at the Penn Biden Center, Biden’s lucrative Washington perch after leaving office in 2017. (This latter facility is otherwise known as the “Penn China Center,” because the University of Pennsylvania mysteriously received at least $30 million from anonymous Chinese donors within weeks of establishing the center for Biden and his former aides the year he left office, including future Secretary of State Antony Blinken.)
– Trump’s possession of his records in the year-and-a-half after he left office was made plain to authorities from the DOJ, FBI and the National Archives, and Trump and his staff met with their representatives to discuss his retention of the documents, and what he could do to keep them secure at Mar-a-Lago. This was only weeks before Biden’s Attorney General Merrick Garland ordered a surprise, sirens-blaring, pre-dawn, multiple-SUV raid by FBI agents on Trump’s estate with media in tow and news cameras rolling overhead from a number of helicopters.
– In Biden’s case, he held on to his documents illegally for at least 15 years, in some instances going back to his 36-year tenure in the Senate. Hur noted that one of the boxes in Biden’s garage “contained marked classified documents from the late 1970s.”
– Hur reported that during the years Biden retained his classified documents, he even shared them with a ghostwriter, telling the scribe that he had “just found all the classified stuff downstairs” during a recorded interview in his Virginia home after leaving office in 2017.
– Amazingly, when Biden’s lawyers disclosed his illegal possession of the documents, Merrick Garland’s FBI somehow arranged a quiet visit to the president’s Wilmington home to conduct a friendly inspection – no dramatic unannounced pre-dawn raid, no breathless live-streams from media embedded in a long convoy of armored cars or hovering overhead.
On its own, Hur’s refusal to prosecute Biden for far more serious allegations than Trump faces in his own case transforms the race for president because it obliterates one of the central arguments Democrats have pushed in their effort to defeat him – that somehow Trump has committed serious crimes for which he must be held accountable through four unprecedented prosecutions. In sum, it lays bare the ludicrousness of the lawfare Democrats are waging on the former president.
Second, and even more significant, Hur’s report knocks down in plain and irrefutable language the other pillar of Democrats’ case for victory in November, namely that the obvious, long-running and steep decline in Biden’s cognitive abilities should be ignored and that he is mentally fit to stand for re-election.
Earlier last week, Russian leaders and state media were laughing openly at Biden for his diminished mental function, including taunts over his lack of firm command over U.S. nuclear launch codes, for mistaking long-deceased 1980s French President François Mitterrand for the current leader Emmanuel Macron, and for losing track of his own defense secretary Lloyd Austin for six days in January.
In typical fashion, the White House spin team attempted to deflect questions over Biden’s regular stumbles and bumbles, and compare favorably his dizzying cognitive slide with what even Trump’s detractors admit is the former president’s strongest suit – his undisputed energy, verbal facility and command of communication on the public stage, including hosting a top-rated reality TV show for over a decade.
Then the Robert Hur bomb dropped. The special prosecutor wrote that one of the main reasons he decided against prosecuting Biden for “willfully retain[ing]” classified documents was for precisely the cognitive decline that the White House and Democrats have been denying desperately for the past year. Hur argued that in any prosecution, “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.”
In other words, Biden’s own DOJ is refuting in clear and direct language the song and dance the White House has put forward publicly this election year that the incumbent President is mentally fit to fulfill the duties of his office, both presently, and in a second term. Biden himself validated Hur’s claim by calling a last-minute audible and holding a news conference following the report’s release that even the New York Times called a “political disaster,” and in which Biden mistook the Mexican president for the president of Egypt.
Thanks to Hur’s report, the Democrats’ two strongest arguments for keeping Trump from another four years in the Oval Office – that the former president is a crook worthy of prosecution, and that Biden is mentally fit to serve as the nation’s chief executive – lie in tatters.
Which brings us to President Obama. The last Democrat president has been warning Biden and party leaders for months, privately and publicly through former aides like David Axelrod, that he faces an uphill fight to win a second term. Now that Hur’s report has detonated like a shaped charge in Biden’s political bunker, Obama is the only man on the planet who can talk Jill and Joe Biden out of standing for re-election.
Obama actually performed this duty for his party twice before, when he convinced his sitting vice president not to run against Hillary Clinton in 2016, and counseled Biden against running in 2020 as well when he was out of office.
Obama has a short window to take that course a third time and arrange to have Biden, in a fig-leaf speech sometime in the next few weeks, “declare victory,” announce that his “great work restoring American democracy is complete,” and that he is no longer running for another term.
Since it’s too late to get other Democrat candidates on remaining state primary ballots, Biden would declare a “fair and open primary fight” to be decided in August with a vote of delegates at the Democrat convention in Obama’s hometown of Chicago, and announce he will refrain from endorsing any candidate before the convention “to preserve the fairness of the process.” In this way Obama will finesse the party’s Kamala DEI problem and let Democrat delegates decide, as voters did in the 2016 primary, that she is not fit to serve as their standard-bearer on the basis of merit rather than through the prism of identity politics.
A far-fetched scenario? Possibly. But with Biden on life support both mentally and politically, there’s no question Obama is already fielding calls along those lines from Party pooh-bahs at his Martha’s Vineyard mansion. And Obama may soon conclude, that for Democrats to have any worldly chance to retain the White House in November, he has no choice but to pull the plug.
Mr. Ullyot is a U.S. Marine Corps veteran and former deputy assistant to President Trump.