Did special counsel cross the line in bashing Biden's memory? Even some Republicans think so

WASHINGTON – Did Special Counsel Robert Hur cross the line when he attacked President Joe Biden’s mental acuity in a report that was supposed to be about the mishandling of classified documents? Former prosecutors − even some Republicans − say he did that and more.

On Thursday, Biden himself angrily accused Hur of gratuitous slander in announcing that the president would not face criminal charges, in part, because he was "an elderly man with a poor memory."

A day later, prominent Democrats including former attorney general Eric Holder and Vice President Kamala Harris – both former prosecutors – rushed to Biden’s defense. So did a host of other legal experts on social media and in interviews with USA TODAY.

Some Republicans did too, saying Hur went overboard with his description of Biden’s performance during an interview with prosecutors. Hur's 388-page report included shocking details describing how the 81-year-old president allegedly didn’t remember when he was vice president or when his son Beau died of brain cancer. Biden angrily refuted those accusations Thursday night.

“I think it's outrageous. Prosecutors are taught that the Department of Justice should speak through charges or it shouldn't speak at all,” said Mark Lytle, a veteran Justice Department public corruption prosecutor who also served in the White House Counsel's Office in the Trump administration.

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A special counsel's 'Jim Comey moment'

“I’m no fan of President Biden, but he's not charged with a crime and now he's out there having to defend himself. And how can he defend himself when there’s no jury or judge to decide whether those allegations are true?” asked Lytle, who describes himself as a Republican. “Hur is acting like prosecutor, judge and jury. And the other side of that coin is it gives Trump and other opponents of Biden all this ammo to argue against him.”

Like others, Lytle described Hur’s report as “a Jim Comey moment,” a reference to then-FBI director James Comey’s decision to publicly announce the reopening of his investigation into Hillary Clinton's private email server just 11 days before she lost the November 2016 presidential election to Donald Trump.

Comey also trashed Clinton in a lengthy news conference that July, saying he had “evidence of potential violations” of the law by Clinton because of her “extremely careless” handling of classified material, before adding that “no reasonable prosecutor” would bring an actual case against her. Comey's comments gave Trump ammunition that he used to defeat Clinton in the general election, and prompted a sharp rebuke by the Justice Department inspector general.

Hur, who was a career Justice Department official and prosecutor before Trump appointed him U.S. Attorney for Maryland in 2018, has not publicly commented on his bombshell report, or the backlash from some of his colleagues. Hur was appointed special counsel in the Biden documents case by Attorney General Merrick Garland.

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'Not a standard prosecutorial review'

Jonathan Turley, a nationally recognized conservative legal scholar and defense attorney, defended Hur, saying he needed to include such details in order to justify not charging Biden after such a high-profile probe.

"This was not a standard prosecutorial review," Turley told USA TODAY. "The special counsel was expected to give a detailed report and he based his legal conclusion in part on the fact that President Biden could not remember critical facts and that he would make a sympathetic defendant. So he made clear that that was a significant concern for the prosecutors."

"At first blush I was surprised by these references and observations," Turley said. "But in fairness to Hur, the thrust of the investigation was to determine President Biden's knowledge and actions over the course of 40 years. And so the president's memory was always going to be material to any conclusions that were reached in his investigation, and he had to explain why (Biden) did not have answers to these questions."

More: Biden turns confrontational over alleged memory loss in DOJ report: 'How in the hell dare he'

'Borderline reckless' editorial comments

Gene Rossi, another longtime federal prosecutor and Justice Department official, said he understood why Hur needed to include some details of Biden's alleged failure to recall certain events or his state of mind at particular times because it went to the heart of whether the president knew he was in possession of classified material − including when talking to a ghostwriter for a book he wrote after the Obama administration.

"But he crossed the line in the sense that he brought up a details that probably had nothing to do with whether President Biden violated the law," said Rossi. "Whether President Biden allegedly did not remember when his son passed away, which I find absolutely preposterous if that happened, has nothing to do with the allegations as to whether he willfully retained documents."

Hur's "strong language about the mental acuity and the age of President Biden causes me pause because that was, frankly, borderline reckless editorial writing," Rossi added. "They could have done it in more professional way. And I think that those passages are completely unnecessary."

Opinion: Special counsel says Biden is 'elderly man with a poor memory.' And he's the Democrats' guy?

Allan Lichtman, a presidential historian and professor at American University, said Hur’s report was clearly an unnecessary personal attack on Biden.

“I have to say this report from the special counsel was a disgrace,” Lichtman said on CNBC. “If you're not charging someone, you don't attack them with your personal opinions, your views, your innuendo.”

“James Comey was roundly and rightly condemned for doing this back in 2016 … and now we've seen the same thing from Mr. Hur and it is totally Inappropriate," Lichtman said. "If this had been done to any ordinary citizen, you know there would be howls of outrage.”

'Way too many gratuitous remarks'

Eric Holder, a longtime career prosecutor and attorney general under President Barack Obama, was one of many lawyers who said Hur included far more detail about Biden's state of mind than was necessary.

"Special Counsel Hur's report on Biden classified documents issues contains way too many gratuitous remarks and is flatly inconsistent with long standing DOJ traditions," Holder said in one of several posts on X, formerly known as Twitter. "Had this report been been subject to a normal DOJ review these remarks would undoubtedly have been excised."

This article originally appeared on USA TODAY: Special Counsel Robert Hur Biden report crossed line, prosecutors say