White House lawyers wrote Garland slamming Hur's report before its release

The day before the special counsel report on Joe Biden became public, the White House wrote to Attorney General Merrick Garland strenuously objecting to the report’s comments on the president’s memory.

Special counsel Robert Hur “openly, obviously, and blatantly” violated the Justice Department’s own policies, White House Counsel Ed Siskel wrote Garland in a previously undisclosed letter.

It wasn’t the first time the White House weighed in on Hur’s report. Months earlier, shortly after Hur had interviewed Biden, another White House lawyer urged the special counsel to make his final report “economical,” arguing that a succinct, straightforward approach devoid of commentary would adhere to Justice Department principles.

Hur didn’t take that advice. Instead, he wrote a report that rocked Washington with its detailed descriptions of Biden’s forgetfulness and its assessment that the president came across as “a well-meaning, elderly man with a poor memory.” Hur concluded that criminal charges were not warranted over Biden’s mishandling of classified documents before he became president. But the political damage was undeniable.

The president’s lawyers reviewed a draft before its public release on Feb. 8, and they objected. On Feb. 7, the president’s personal lawyer Bob Bauer joined Siskel on the letter sent directly to Garland. They didn’t ask Garland to take any action, but they put their concerns on the record.

They got a response the next day from the department’s top career official, Associate Deputy Attorney General Bradley Weinsheimer. He sent the lawyers a concise defense of the contents of Hur’s report and the decision to make it public — and he said, on behalf of the Justice Department, that the report was “near the apex of the public interest.”

After the report’s release, the president’s lawyers kept registering their disapproval — both publicly and privately. On Feb. 12, they fired back at Weinsheimer in another letter, charging him with harboring “a disturbing lack of concern” about the Justice Department’s power to malign innocent people.

The letters between the president’s lawyers and DOJ, none of which have been previously reported, show that the White House actively shared its views on how the Justice Department’s rules should have shaped Hur’s work. And the documents show that Hur had the unequivocal support of the department’s top career official — a man one former official called “the conscience of the Department.”

On the whole, the letters obtained by POLITICO reveal the extent of the chasm between the Justice Department and the White House over Hur’s report. Biden has told aides that he is frustrated with Garland. He campaigned on restoring the Justice Department’s independence and on restoring its norms. His own White House is now accusing the department of violating those norms.

Spokespersons for the White House and the Justice Department declined to comment. Bauer declined to comment through a spokesperson.

Fall 2023

On Oct. 31, 2023 — three weeks after Hur interviewed Biden — Richard Sauber, a White House lawyer, sent an eight-page letter to Hur and his deputy delving into the Justice Department regulations that govern special counsels. Sauber argued that the regulations and their historical context reflect a rejection of “the drafting and publication of long, detailed reports.”

Sauber pointed to the history of politically sensitive prosecutions before 1999, when the current special counsel regulations were adopted. Before then, a federal law allowed the attorney general to appoint independent counsels to handle sensitive probes, including matters related to President Bill Clinton. Those independent counsels wrote long, detailed reports on their work — regardless of whether they charged anyone with crimes.

The reports drew criticism for unfairly maligning their subjects, and Congress let the statute expire. Then the Justice Department crafted the special counsel regulations to handle similarly sensitive investigations.

Sauber argued in his letter to Hur that those regulations specifically direct a special counsel to produce “only a summary final report.” And that report, Sauber added, was only supposed to hold the special counsel accountable for his or her work.

“It is emphatically not meant as a vehicle to provide accountability for the subject of the investigation,” he added.

Sauber’s letter cited a surprising source: a 2019 article that former independent counsel Ken Starr wrote for The Atlantic, arguing that special counsel Robert Mueller, who investigated ties between Russia and Donald Trump’s 2016 campaign, “must remain silent.” Mueller, of course, did no such thing. Instead, he released a report that ran more than 400 pages and suggested then-President Donald Trump might have engaged in obstruction of justice.

Hur’s report needed to follow the Justice Department’s principle of not denigrating people outside of the courtroom, Sauber argued. Maligning people without letting them respond in court was fundamentally unfair. And the Justice Department’s regulations called for a “limited” and “summary” final report.

“[T]he report should be economical,” he wrote. “It should include the factual information necessary to the charging decision, but facts or events that are not essential to the decision have no place.”

Sauber also asked Hur’s team to let the president’s lawyers review a draft of the report before it became public.

Winter 2024

Three months later, Hur’s report was written. And it wasn’t short. Over more than 300 pages, the special counsel described his work investigating Biden. His report included photos of classified documents in a garage near exercise equipment and in a file box under a TV. It also said that if Biden were hypothetically charged with mishandling classified material, jurors would probably acquit him because they would see any alleged wrongdoing as the result of his advanced age and forgetfulness.

By Feb. 5, Sauber and Bauer had read a draft of Hur’s report. And they sent him a letter excoriating it. Hur attached a copy of that letter to his report, and it was published along with the report.

Meanwhile, Siskel, the White House counsel, weighed in directly to Garland. On Feb. 7, as White House lawyers reviewed a draft of Hur’s report for executive privilege issues, Siskel and Bauer sent a letter, which has not been previously disclosed, to Garland raising concerns about the document.

They objected to Hur’s characterization of Biden’s retention of classified material at his home after he ended his time as vice president in 2017. Hur called the practice irresponsible, but Siskel and Bauer said prior presidents did “exactly the same thing.” And the two lawyers argued Hur committed the same sin as then-FBI Director James Comey did when he held a press conference in 2016 accusing Hillary Clinton of carelessness about classified documents but also saying charges were not warranted.

They also said Hur’s description of Biden’s mental acuity was profoundly unfair.

“A global and pejorative judgment on the President’s powers of recollection in general is uncalled for and unfounded,” they wrote.

They ended the letter by offering to discuss the issues with Garland if he wished to do so, and by charging Hur with “openly, obviously, and blatantly” breaking from Justice Department practices.

The next day, Feb. 8, Weinsheimer, the associate deputy attorney general, responded to the letter on behalf of the department. Weinsheimer, a civil servant who has worked at the department for decades, oversees the department’s most politically sensitive matters, including questions on ethics. He has fielded complaints from Hunter Biden’s lawyers about special counsel David Weiss and from Trump’s lawyers about special counsel Jack Smith.

“Having carefully considered your arguments, the Department concludes that the report as submitted to the Attorney General, and its release, are consistent with legal requirements and Department policy,” Weinsheimer wrote to the president’s lawyers.

Hur’s unflattering depiction of Biden wasn’t included to be gratuitous, Weinsheimer continued. Rather, it was there to explain Hur’s view of Biden’s state of mind when he held on to classified information. And Hur wasn’t pulling a Comey, he continued. Comey “acted outside of his authority,” while Hur was specifically directed to decide whether to bring criminal charges.

And, he added, the report — and its public release — followed the department’s policy and practice.

“The report addresses whether the President, as a private citizen, mishandled classified information in violation of criminal laws,” he concluded. “This sits near the apex of the public interest.”

Weinsheimer’s letter reached the White House shortly before the report became public on the afternoon of Feb. 8, according to a person familiar with the matter granted anonymity to discuss private communications.

The impact of the report’s release could have been measured on the Richter scale, with some House Republicans even calling for Biden’s Cabinet to invoke the 25th Amendment and remove him from office.

And the White House team lept into action. Vice President Kamala Harris called the document “gratuitous, inaccurate, and inappropriate.” And Bauer said in a CBS interview that it was “shabby work product.” Biden allies on Capitol Hill and cable news also lambasted Hur.

But the White House pushback wasn’t just public. Four days after the report’s release, Bauer and Sauber wrote back to Weinsheimer. They argued that Weinsheimer’s distinction between Comey and Hur was “plainly inaccurate,” and that they deeply disagreed with his assessment.

“Justifying Special Counsel Hur’s conduct by telling us that he held a different position than former Director Comey not only flies in the face of the Department’s own principles, it reflects a disturbing lack of concern about the harm that the policy seeks to avoid,” they wrote.

Hur’s report included “unnecessary, inflammatory, and prejudicial statements,” and — they reiterated — flew in the face of the department’s traditions.

The report’s political aftershocks — and the battle over its propriety — will continue from here. The Republican-led House Judiciary Committee is seeking some of the materials that underlie the report. And the special counsel himself is expected to testify to Congress.

“This isn’t easy,” said a former DOJ official granted anonymity to share candid views. “It’s not easy when you have the White House saying, ‘Hey, we think you’ve done this wrong and you’re going to hurt the president.’ No one does that lightly. But they also realize they have to make the call the way they see it, on the merits. And that’s what they did. They did their job.”