Why special counsel reports often paint unflattering pictures of presidents even if they aren’t charged

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Special counsel Robert Hur’s report on President Joe Biden’s mishandling of classified information has reignited controversy over special counsels and their investigative reports, which are designed to publicly disclose findings – including negative ones – even if prosecutors decline to bring charges.

Attorney General Merrick Garland received Hur’s final report on Monday, according to the Justice Department, and immediately was confronted with how to handle the harsh assessment of the president’s conduct, including language saying that a jury could see him as an “elderly man with a poor memory.”

Garland and other top Justice Department officials had the option to try to remove some of the characterizations in Hur’s report that the White House says were gratuitous and false.

But the repercussions of doing so are clear: Garland would have to report to Congress the information he was removing, which would immediately undermine the independence of the investigation and fuel more allegations of partisanship.

The information removed would likely eventually become public anyway, Justice Department officials say.

The closing of the investigation will soon also present the Justice Department and the White House a new decision on what to do about any audio recordings of the president’s interview last October with Hur, his 2017 discussions with his ghost writer and other materials from the investigation. The special counsel’s office recorded its interview with Biden, according to two sources familiar with the matter.

The special counsel’s report released on Thursday immediately fueled attacks on the president about his age, a sore subject for Biden that was already one his biggest challenges with voters as he faces a potential reelection rematch against former President Donald Trump in November.

Special counsels have been full of controversy dating back decades, regardless of whether they lead to an indictment, from special prosecutor Ken Starr’s investigation of former President Bill Clinton to Robert Mueller’s probe into Trump – and now Jack Smith’s twin indictments of Trump.

Biden’s lawyers accused Hur of violating Justice Department rules that generally prohibit releasing negative information about subjects in an investigation if they aren’t being charged with a crime.

Former Attorney General Eric Holder joined that criticism, posting on the social media platform X that Hur’s report “contains way too many gratuitous remarks and is flatly inconsistent with longstanding DOJ traditions. Had this report been subject to a normal DOJ review these remarks would undoubtedly have been excised.”

But current and former officials said Hur’s detailed explanation for not charging Biden was well within Justice Department guidelines for special counsels.

“What he wrote was relevant to his decision to not bring charges,” one official said.

Ty Cobb, a former White House attorney for Trump during the Mueller investigation, said the reasons Hur cited for not charging Biden are “valid considerations, particularly given the fact that under current DOJ policy, the president could not be charged for almost two years and it would take another year or more to get to trial.”

But, Cobb added, “I am surprised, unless the president’s lawyers argued his feebleness [to the special counsel’s office], that there was so much detail.”

The Justice Department and Hur’s office declined to comment.

Ian Sams, spokesman for the White House counsel, expressed openness during a briefing Friday to requests that the administration release transcripts from the investigation, pending a review for classified information.

The White House could also assert executive privilege over the investigative materials, though the president declined to assert privilege over the report.

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