Andrew Weismann and Ryan Goodman point out that the Robert Hur’s report unambiguously states that there is no basis for criminal charges agains Biden, but has not been reported this way:
The Special Counsel Robert Hur report has been grossly mischaracterized by the press. The report finds that the evidence of a knowing, willful violation of the criminal laws is wanting. Indeed, the report, on page 6, notes that there are “innocent explanations” that Hur “cannot refute.” That is but one of myriad examples we outline in great detail below of the report repeatedly finding a lack of proof. And those findings mean, in DOJ-speak, there is simply no case. Unrefuted innocent explanations is the sine qua non of not just a case that does not meet the standard for criminal prosecution – it means innocence. Or as former Attorney General Bill Barr and his former boss would have put it, a total vindication (but here, for real).
But even without the prompting of a misleading “summary” by Barr, the press has gotten the lede wrong. This may be because of a poorly worded (we’re being charitable) thesis sentence on page 1 of Hur’s executive summary. Hur writes at the outset: “Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.” You have to wait for the later statements that what the report actually says is there is insufficient evidence of criminality, innocent explanations for the conduct, and affirmative evidence that Biden did not willfully withhold classified documents. Put another way, that same sentence about “our investigation uncovered evidence” could equally apply to Mike Pence, who had classified documents at his home, which is similarly some “evidence” of a crime, but also plainly insufficient to remotely establish criminality.
The press incorrectly and repeatedly blast out that the Hur report found Biden willfully retained classified documents, in other words, that Biden committed a felony; with some in the news media further trumpeting that the Special Counsel decided only as a matter of discretion not to recommend charges.
To clarify thinking about this topic, let’s consider another way Hur could have represented his actual findings on page 1 of his executive summary:
“We have concluded that there is not a prosecutable case against Biden. Although there was a basis to open the investigation based on the fact that classified documents were found in Biden’s homes and office space, that is insufficient to establish a crime was committed. The illegal retention or dissemination of national defense information requires that he knew of the existence of such documents and that he knew they contained national defense information. It is not a crime without those additional elements. Our investigation, after a thorough year-long review, concludes that there is an absence of such necessary proof. Indeed, we have found a number of innocent explanations as to which we found no contrary evidence to refute them and found affirmative evidence in support of them.”
The collection of headline screenshots at the bottom of the article is depressing indeed.
Hur, needless to say, knew what he was doing — a misleading statement up top and some bare assertions about Biden’s age/memory would cause the political press to grossly mischaracterize the report. But that’s not any kind of defense of the media’s conduct. They could have learned the lesson of Barr’s false statements about the Mueller report (amoing countless other examples) and treated the statement issued by a partisan Republican lawyer with some care and skepticism. Hur played them because they want to get played — they finally have EMAILS 2.0 and they may not let up until Trump is back in the White House.