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Special counsel blows open debate over Biden age and memory: ANALYSIS

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The legal headline — that President Joe Biden will not face prosecution in connection with his handling of classified documents, in stark contrast with the former president he is set to run against again — is not what carries the political punch.

Instead, the special counsel’s extended rationale for why Biden would likely not be convicted is what immediately stirred up fresh questions about the president’s ability to continue to do the job.

The report from special counsel Robert Hur found that “no criminal charges are warranted in this matter,” despite evidence that Biden retained classified documents related to Afghanistan policy from his time as vice president, and even shared them with a ghostwriter to aid in his memoirs.

PHOTO: President Joe Biden departs the South Lawn of the White House in Washington, D.C., on Feb. 8, 2024.

President Joe Biden departs the South Lawn of the White House in Washington, D.C., on Feb. 8, 2024.

Kyle Mazza/NurPhoto via Shutterstock

Things get worse from there in Hur’s accounting, drawing specifically on the recorded interactions the president had, voluntarily, with the special counsel’s office. In the interviews last October, the president had “limited precision and recall,” according to Hur, who ultimately found that a jury would likely find Biden to be “a sympathetic, well-meaning elderly man with a poor memory.”

“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt,” Hur writes. “It would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”

PHOTO: In this Nov. 21, 2019, file photo, U.S. Attorney Robert Hur arrives at U.S. District Court in Baltimore.

In this Nov. 21, 2019, file photo, U.S. Attorney Robert Hur arrives at U.S. District Court in Baltimore.

Steve Ruark/AP, FILE

Specifically, Hur writes that Biden, now 81, did not remember when his time as vice president either began or ended; did not recall the date of his son’s death “even within several years”; and had a “hazy” memory about key players in the Obama administration’s Afghanistan debate that was “once so important to him” – the subject on which Biden was found to have retained documents, to aid in a historical retelling of his role.

PHOTO: Garage box and storage closet of President Joe Biden's garage taken on Dec. 21, 2022, in a photo released by the Department of Justice.

Garage box and storage closet of President Joe Biden’s garage taken on Dec. 21, 2022, in a photo released by the Department of Justice.

Department of Justice

Details ostensibly meant in part to explain a lack of criminal liability border on mockery. The special counsel’s report — which includes ample photographs — states flatly that a cache of Afghanistan documents Biden kept at his Delaware home were stored “in a badly damaged box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil, and synthetic firewood.”

The president’s legal team fired back with a sharp retort, slamming Hur for using “highly prejudicial language” to describe an understandably fuzzy recall of events that occurred years ago. Details peppered throughout the report, they wrote to Hur, were “superfluous” and do not account for the fact that Biden was quite busy when he sat with Hur’s team, in the days just after the Oct. 7 Hamas terrorist attacks on Israel.

“In fact, there is ample evidence from your interview· that the President did well in answering your questions about years-old events over the course office hours,” they wrote. “We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate.”

PHOTO: President Joe Biden speaks during the annual House Democrats 2024 Issues Conference, on Feb. 8, 2024, in Leesburg, Virginia.

President Joe Biden speaks during the annual House Democrats 2024 Issues Conference, on Feb. 8, 2024, in Leesburg, Virginia.

Anna Moneymaker/Getty Images

Biden himself late Thursday said he was glad that the special counsel’s “matter is now closed” without any charges being filed.

“I was especially pleased to see the special counsel made clear the stark differences between this case and Donald Trump,” the president told a gathering of House Democrats.

But former President Donald Trump’s allies jumped on Hur’s decision not to prosecute as evidence, in their telling, of a double standard when it comes to criminal prosecution. They ignored the detailed explanation Hur’s team included as to why Trump’s case — which involves accusations of refusing to turn over classified documents, and allegations of obstructing efforts to get them in the possession of the National Archives — is demonstrably different, and thus the subject of pending criminal charges.

In the Biden case, the White House emphasized from the beginning it would cooperate with investigators and Biden immediately agreed to turn over documents when they were found.

But Hur’s depictions of Biden carries a different political sting than even criminal charges might. The super PAC supporting Trump summed it up in a statement: “If you’re too senile to stand trial, then you’re too senile to be president.”

More recent and more public examples have put the subject in the spotlight. This week, the president appeared to forget the name of Hamas, the terrorist group that launched the attack against Israel, in a meandering answer to a reporter’s question that made little sense.

Twice in recent days he has recounted what he said were recent conversations — with long-deceased European leaders. The White House’s decision to forego a Super Bowl Sunday interview – once an easy presidential tradition that held the promise of reaching an enormous audience — has raised questions about whether aides are protecting him from himself.

Polls have long shown considerable voter concern around Biden’s mental abilities. An ABC News/Washington Post poll in September found three-quarter of Americans think Biden is too old to serve another term as president, while half say the same about Trump, who is less than four years younger.

Minnesota Rep. Dean Phillips – arguably the most credible Democrat to run against Biden in the presidential primaries this year – this week wrote on X that he’s being “attacked for being honest and saying the quiet part out loud,” circulating clips of the president stumbling in recent public remarks.

“I admire our President,” Phillips wrote. “But shame on all of you pretending everything is ok. You are leading us – and him – into a disaster, and you damn well know it.”

The public discussion of Biden’s mental acuity comes at a tenuous time in the political calendar. The nominating process is well underway, with ballot-access deadlines rapidly passing and with Biden romping. He got 96% of the vote in South Carolina and 89% in Nevada, against Phillips and other lower-profile opponents, and even won a write-in contest in New Hampshire, where no convention delegates were at stake.

Trump, meanwhile, is cruising to the Republican nomination in his own right, despite concerns about the legal issues that could derail his campaign in multiple directions. Former Gov. Nikki Haley – the last Republican standing against Trump – is questioning the age and abilities of both Trump and Biden in an effort to get herself back into contention.

“We all know 80-year-olds who can run circles around us,” Haley wrote on X on Tuesday, “and then we know Trump and Biden.”

The legal morass facing Trump is not equivalent to the questions about age facing Biden. But as a matter of politics, both matter, particularly in a divided country that seems unenthusiastic about a rematch between two candidates who topped their respective tickets in 2020.

Functionally, Biden will be the Democratic nominee unless he were to decide to step aside — something he has shown no inclination to do.

But his longstanding rejoinder to those questioning his abilities — “watch me” — has been turned on its head. Part of Biden’s problem now is that he is being watched, with more observers and voters apparently not compelled by what they see.

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