Biden faces his 'Comey moment'

“It felt like a Comey moment for me.”

That was the assessment of a top Biden campaign official watching special counsel Robert Hur's report explode Thursday.

In July 2016, FBI Director James Comey ripped into Hillary Clinton for being “extremely careless” with classified material and noted that there was “evidence of potential violations” of the law — assessments that played into a narrative that helped tank her presidential campaign.

Then he delivered the actual news: “no reasonable prosecutor would bring such a case.” In a scathing report, the Justice Department’s inspector general later harshly criticized Comey for his actions.

Like Comey, the Biden official argued, Hur put his “thumb on the scale during an election season.”

Biden’s lawyers raised the C-word with Hur even before the report became public.

Why, they demanded, had Hur called Biden “totally irresponsible,” the same words Biden used to criticize Trump’s retention of classified documents, when in other parts of the report they took pains to note the differences between the two cases? Biden's lawyers invoked the IG’s Comey report in arguing that “totally irresponsible” was the new “extremely careless,” that is was “criticism of an uncharged party" in violation of DOJ protocols.

But the real peril in the report was the one highlighted by Biden’s lawyers in two pages of forceful language that laid out their shock and indignation at Hur’s repeated criticisms of Biden’s memory — an issue that, given voters concerns about the president’s age, is central to the 2024 election.

“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur wrote in the most quoted line of the document.

But there was much more:

• Page 9: “Mr. Biden's memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023.”

• Page 208: “Mr. Biden's memory also appeared to have significant limitations … Mr. Biden's recorded conversations with [ghostwriter Mark] Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries. In his interview with our office, Mr. Biden's memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (‘if it was 2013 — when did I stop being Vice President?’), and forgetting on the second day of the interview when his term began (‘in 2009, am I still Vice President?’).” 

• Page 247: “For these jurors, Mr. Biden's apparent lapses and failures in February and April will likely appear consistent with the diminished faculties and faulty memory he showed in Zwonitzer's interview recordings and in our interview of him.”

Biden’s lawyers pounced on the editorializing, saying the descriptions were not “accurate or appropriate.”
Hur’s report, they wrote, “uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events. Such comments have no place in a Department of Justice report, particularly one that in the first paragraph announces that no criminal charges are ‘warranted’ and that ‘the evidence does not establish Mr. Biden's guilt.’”

White House officials were in the dark all week about what Hur would do, knowing the worst of what could be in the document but hoping that their back-channel appeal would force some edits. “Hur did not indicate whether he would make any changes,” said a person familiar with the process.

Hur was apparently unmoved by the Biden legal team’s arguments. When White House officials saw the final version on Thursday it was all still there: the repeated references to Biden’s “hazy,” “significantly limited,” and “poor” memory, and the comments about Biden’s “totally irresponsible” actions.

But for Biden, the cheapest shot — and the one that most infuriated him — was this line: “He did not remember, even within several years, when his son Beau died.”

The report was released as Biden was attending the annual House Democratic retreat in Virginia. The president vented about the Beau line privately during a small meet-and-greet with House Minority Leader Hakeem Jeffries, Democratic Caucus Chair Pete Aguilar and party leaders (“You think I would fucking forget the day my son died?” he said, according to the AP).

He repeated a version of the line without the F-bomb during a Q&A with a larger group of House Dems. And, according to a source familiar with the planning for the hastily arranged news conference last night, Biden was angry and defiant and still feeling especially outraged by the Beau line when he decided to face reporters and defend himself from Hur’s slurs — where he compounded the questions about his memory issues by referring to Egyptian President Abdel Fatah al-Sisi as the “president of Mexico.”

The view from Biden world is that Hur’s editorializing was driven by two factors:

1. Partisanship: “We have to remind people that this is a MAGA guy,” said the campaign official.
2. Pride: Hur had failed to find indictable conduct. 

“The prevailing feeling is that they poured all these resources into investigating — and we were very cooperative — and he's the only special counsel investigation that’s ever not led to charges,” said one Democratic defender of the president. “And I think that there's probably some frustration around that that led to this over-torquing: ‘So let me just shit on [Biden] about memory!’ And also crossing a line that very few people would ever think about crossing when it comes to Beau.”
If Biden world seems defensive, it’s because they know Hur hit on an issue that the campaign has no real way to combat with ads or fancy strategy.

“The fact that he's a senior citizen is not going to go away,” the Biden campaign official told Playbook. “What I've said to my colleagues is that we all have to remind the American people that sometimes we forget shit.”

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