WASHINGTON — Attorney General Merrick Garland repeatedly defended President Biden’s cognitive fitness for office Tuesday, telling Congress the commander in chief “has no impairment” — despite special counsel Robert Hur citing Biden’s foggy memory as a reason not to prosecute him for mishandling classified records.
Garland, 71, testified that he “could not have more confidence” in the 81-year-old president’s mental fitness — arguing Hur “did not say anything like that” in his February report, even though the document made Biden’s perceived decline a key point in recommending against criminal charges.
“I have complete confidence in the president,” Garland told the House Appropriations Committee.
“I have watched him expertly guide meetings of staff and Cabinet members on issues of foreign affairs and military strategy and policy in the incredibly complex world in which we now face and in which he has been decisive in instructions to the staff and decisive in making the decisions necessary to protect the country.”
“Likewise,” he added, “with respect to domestic policy discussions — these are intricate, complicated questions — he has guided all of us through in order to reach results that are helpful and important and beneficial to the American people.”
The attorney general, who appointed Hur and accepted his recommendation not to charge Biden, chided Rep. Ben Cline (R-Va.) for raising the matter, telling him at one point in the hearing, “the president has no impairment.”
“I don’t know how many ways I can say this: I have complete confidence in the president and I reject your characterization,” Garland said.
In another exchange, Garland reprimanded Rep. Mike Garcia (R-Calif.) for paraphrasing Hur by saying that the rationale for not prosecuting Biden “was that he was cognitively incapable of understanding what he was doing and he was too old to face charges.”
“That is not at all what Mr. Hur said,” Garland scolded. “And I urge everyone to read again what he said. He did not say anything like that.”
Hur’s 388-page report, in fact, cites “several defenses” that Biden could raise at trial that could establish “reasonable doubt” as to whether he willfully hoarded sensitive papers over decades in office — but the special counsel gave significant weight to how jurors would perceive Biden’s memory.
Hur, a former Maryland US Attorney, wrote that it is possible Biden didn’t recall keeping classified documents after leaving the vice presidency in January 2017, despite a recorded conversation with his ghostwriter Mark Zwonitzer in which he described finding “all the classified stuff downstairs” at a rental home in Virginia.
“Mr. Biden could have found the classified Afghanistan documents at his Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not retain them willfully,” Hur wrote.
“Given Mr. Biden’s limited precision and recall during his interviews with his ghostwriter and with our office, jurors may hesitate to place too much evidentiary weight on a single eight-word utterance.”
Hur also wrote that “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.”
Other potential defenses that Hur cited included that the documents “could have been stored, by mistake and without his knowledge, at his Delaware home” and that there was a “shortage of evidence” such as photos showing that classified documents were indeed at the Virginia home, as Biden said on tape.
Garland is facing a potential contempt vote by House Republicans for refusing to hand over tapes of Biden’s interviews with Hur on Oct. 8-9 of 2023. Transcripts show apparent Biden confusion, but Garland argues it would violate department norms to provide the actual audio, which likely would be used by Republicans to oppose Biden’s bid for a second term in the November election.
House Republicans also want tapes of Zwonitzer’s testimony. The ghostwriter, with whom Biden allegedly shared classified information, avoided criminal charges despite admitting he deleted recordings of his conversations with Biden after learning of Hur’s investigation.
Cline told Garland Tuesday that there’s a public perception that the Justice Department is biased and that there’s a “crisis of confidence in this country” as former President Donald Trump, 77, faces criminal charges for allegedly mishandling classified documents and obstructing authorities.
Biden critics have debated whether his seemingly confused comments to Hur reflect actual cognitive impairment or a legal strategy to avoid potential charges by adoption of a “bathrobe defense” in which he may have exaggerated points of confusion to avoid accountability.
White House officials, including Vice President Kamala Harris, have advanced a different theory, arguing Biden may have been distracted during the interviews because he was monitoring fallout from Hamas terrorists attacking Israel on Oct. 7.
However, Biden’s mental fitness is a top election issue ahead of the president’s likely rematch against Trump.
A New York Times poll last month found 73% of registered voters believe Biden is too old to be president — versus 42% who said so of Trump.
Garland, whose nomination to the Supreme Court by President Barack Obama was effectively killed by Trump’s upset 2016 election win, has been in the hot seat before, including last year when IRS whistleblowers said that he misled Congress — a potential crime — about Delaware US Attorney David Weiss’ ability to independently charge first son Hunter Biden for tax fraud and other crimes.
The AG had said that Weiss was empowered to bring charges outside of Delaware, but Biden-appointed US attorneys in DCand Los Angeles later confirmed they declined to “partner” with Weiss, whom Garland ultimately elevated in August to be a special counsel following the IRS whistleblower allegations.
