Although Special Counsel Robert K. Hur chose not to pursue charges against President Joe Biden for mishandling classified materials after his vice presidency, an indictment would have been a much better outcome for Biden and his supporters.

The president and his supporters have more significant problems than an indictment would have likely brought. 

The Special Counsel’s report may prove to be the single most damaging indictment of a president since Nixon’s “Smoking Gun” tape became public. 

Look in the mirror, Democrats. That reflection is what you projected on Donald Trump after the release of the Mueller Report, the aftermath of the raid on Mar-a-Lago, Jack Smith’s indictment of Trump for his withholding of classified materials, and even your call for invoking the 25th Amendment to remove Trump. That’s what you saw then, but now it’s Joe Biden’s image.

The Hur Report solidifies what polling shows a majority of Americans already believe: Biden is too old and lacks the physical and mental stamina to be president for a second term and perhaps for the remainder of this term. That will likely prove more damaging than if Hur indicted Biden.

Every poll has shown that voters consider Biden too old and question his mental acuity to be president of the United States. A marketing pro who is a longtime friend once taught me, “Changing images is like trying to melt a glacier with a Bic lighter.” 

Biden already had a near-impossible task of convincing voters that he was up to the task of a second term as president, which would take him well into his upper 80s. The Special Counsel just made the mountain that Biden and his supporters must climb considerably higher. 

The Hur Report leaves Biden and his supporters between the proverbial rock and a hard place.

The report is clear: Biden engaged in all the elements of the crime of risking national security by mishandling classified materials. The report concludes:

“President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and Methods. FBI agents recovered these materials from the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware home.”

Hur used prosecutorial discretion — within his purview — in choosing not to charge Biden, primarily because “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.” 

In other words, he’s incompetent to stand trial. It’s a defense that has worked before. Recall Vincent “The Chin” Gigante, the mob boss who took to wandering the streets of New York City in a ratty bathrobe and slippers. Called the “Oddfather,” he avoided prosecution for several years on the grounds he was incompetent until it was discovered that he was faking it some years later. Maybe Biden is legitimately cognitively impaired and not competent to stand trial.

The implications are apparent.

If Biden isn’t competent enough to stand trial, how is he competent to deal with Vladimir Putin, Xi Jinping, Benjamin Netanyahu, Hamas, not to mention the nuclear codes?

When Trump was in office, Democrats openly talked about invoking the 25th Amendment to remove him (even before impeachment). It may be time to consider using the clause to remove Biden from office before the end of his term.

Democrats couldn’t allow Hur’s conclusion to stand.

Biden’s supporters immediately rushed to criticize Hur’s characterization of Biden as wrong and political. But if Hur’s depiction of the president, which the public has witnessed over the past several years, is incorrect, and if we are to believe that Biden is really up to the task of President of the United States and Commander In Chief, despite all gaffes, misspeaks, and stumbles, then what is the justification in the report for not charging him?

It’s one or the other.

Biden Democrats can’t have it both ways. The report does not exonerate Biden. He WILLFULLY RETAINED AND DISCLOSED CLASSIFIED DOCUMENTS. Nothing Biden or his supporters say changes that statement, and his mental state is the reason he wasn’t indicted. Those two facts are inextricably linked together.

The 388-page report is an indictment of Biden’s career-long history of willfully mishandling classified materials as far back as his early Senate days. 

As vice president, Biden was notoriously sloppy with classified materials. The report details Biden’s mishandling of classified documents and his staff’s frustration in retrieving and accounting for classified materials. The report also shows the measures his (first) Counsel, Cynthia Hogan, took to ensure accurate accounting and return of classified documents, which were ongoing issues throughout his vice presidency.

In the final days of the Obama administration, Biden was trying to keep his notecards and notebooks containing classified information. The task of straightening the matter out went to his (final) Counsel, John McGrail. He was clear, and Biden acknowledged, that all materials needed to go to the National Archives for proper storage.

Despite this and the claims that Biden cooperated, the narrative in the report tells a different story.

In a 2017 recorded conversation, Biden told his ghostwriter, Mark Zwonitzer, he “just found all the classified stuff downstairs.” The report mentions this frequently but also states that Biden may have “forgotten” about it or that the reference could be vague. 

Sure. 

In another conversation, he tells his ghostwriter that something he has is “in the gray area,” and in yet another, Biden says, “They (his staff) didn’t even know I have this (notebook).”

Biden’s “cooperation” began six years after he was no longer VP. He acknowledged, even boasted that he had classified documents on numerous occasions. His staff started to look for them only after the FBI raided Mar-a-Lago.

Even if we are to believe Biden cooperated, it doesn’t absolve him of the crime of mishandling classified documents and sharing them with his ghostwriter. Cooperation may figure in sentencing. It does not absolve a person of their crimes.

Trump once famously said he could shoot somebody on Fifth Avenue without losing a vote. If he actually did so, and in the process murdered somebody, and then turned himself in and cooperated with police, would he avoid getting charged with murder? The Trump-haters wouldn’t allow that for a minute — nor should they. Likewise, unless Biden isn’t competent to stand trial, he should be charged with the crime he committed – just as Trump is. 

What is Biden’s reason for having these materials? See if it sounds familiar. The report quotes him as saying, “They are mine. Every president before me has done the exact same thing.”

Biden substantially gave the same response as Trump, rationalizing having the documents.

The report also states: “In later written answers, Mr. Biden wrote that, “like presidents and vice presidents before me, I understand these notes to be my personal property. He declined to answer several questions about whether he believed his notes contained classified information: whether he believed he was authorized to possess classified information after his vice presidency: and whether he took steps to avoid writing classified information in his notebooks.”

It certainly makes charging Trump with the possession and sharing of classified documents look suspect. 

It adds fuel to Trump’s fire that his indictment for retaining and sharing classified documents is selective prosecution. Both have the same excuse – they are my personal materials, and all other presidents have done this. Indicting Biden would have taken this argument away from Trump.

Yes, there’s a difference. Trump obstructed justice, maybe. Even if Trump is wrong, he has a right to bring his challenge to the courts. Although the FBI raid now looks more clearly like it was the actual political stunt.

Realizing the political position the Hur Report left them in, Biden hastily called a press conference the same evening the report was released. The report may have done more political damage to a presidency than anything since the revelation of Nixon’s Smoking Gun tape. 

Then Biden proceeded to bridge Mexico and the Gaza Strip, which is harder to understand than mixing up the presidents of Mexico and Egypt. He also could not remember the church where his son Beau’s rosary that he wears came from, “Our Lady of…”

Biden would have done better to get a good night’s sleep and let his anger subside.

Where Nixon proclaimed, “I am not a crook,” Biden said, “I know what the hell I’m doing.” 

The American public will determine whether that is a credible or laughable statement.

If Biden is going to continue as president, let alone run again for a second term, he’ll need the greatest October surprise of all time. Biden will need to find “the Fountain of Youth.” 

Andy Bloom is President of Andy Bloom Communications. He specializes in media training and political communications. He has programmed legendary stations including WIP, WPHT, WYSP/Philadelphia, KLSX, Los Angeles, and WCCO Minneapolis. He was Vice President of Programming for Emmis International, Greater Media Inc., and Coleman Research. Andy also served as communications director for Rep. Michael R. Turner (R-Ohio). He can be reached by email at andy@andybloom.com or you can follow him on Twitter @AndyBloomCom.