The President of the United States is too senile to prosecute.
That might sound harsh but it’s a reasonable interpretation of the 388-page report by US special counsel Robert Hur, appointed a year ago to investigate whether Joe Biden had illegally kept classified documents at his private home.
Yes, Biden did “wilfully retain and disclose classified materials after his vice presidency”, Hur concluded, including top secret foreign and military policy documents related to the Afghanistan war.
That is, he broke the same laws allegedly that Donald Trump broke in keeping classified documents at his Mar-A-Lago home. “He knew he kept classified information in notebooks stored in his house and he knew he was not allowed to do so,” Hur said.
But unlike Trump, who faces jail time, Hur declined to prosecute, in part because Biden’s mental faculties had declined so much he would elicit sympathy from jurors.
Biden couldn’t remember when his son Beau had died within several years. “He did not remember when he was vice president, forgetting on the first day of the interview when his term ended … and forgetting on the second day of the interview when his term began,” Hur said.
“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”. Not exactly ideal traits for the leader of the free world.
The report was a political disaster for the president, who almost certainly would have preferred, if he were fully across the consequences of the report, to have been prosecuted.
Donald Trump’s claims to be the victim of a pro-Democrat persecution by the Justice Department appear to have been vindicated, at the same time as the president’s mental abilities have been derided so badly discussion of the 25th amendment (whereby presidents can be removed for incapacity) erupted on social media.
And the president’s defensive rambling press conference delivered a few hours after the report came out only made matters worse: he confused Egypt and Mexico in a discussion of the Israel-Hamas war, adding another to a string of embarrassing gaffes.
To be sure, Trump’s alleged crimes in relation to his documents stash, were more egregious: he had many more and refused multiple times to return them to the National Archives.
But it’s a distinction unlikely to matter much to Trump supporters or even time-poor independent voters, whose main take away from the Hur report could well be that the president was mentally deficient.
The decision to prosecute, a current or former president, or indeed anyone for that matter, is a judgment call. It’s not some automatic process that blindly determines who has acted illegally, especially for abstract laws about documents drafted decades ago with little precedent.
Democrat prosecutors, state and federal, didn’t have to prosecute Trump, but they chose to. They may come to regret it, given the political boost the multitude of cases, of varying degrees of seriousness, have given Donald Trump, who is now leading Joe Biden in most national polls.
It could be the best day Trump has had politically since his triumph over Nikki Haley in New Hampshire’s primary last month.
If, however, Hur’s report triggers the replacement of President Biden sometime later by a Democrat party too embarrassed to field him, it could end up a disaster for Trump, who could be left facing a younger more appealing opponent.
If Hur is right about his mental state, Democrats will want Biden to campaign from the basement again, as he did in 2020. But that won’t be an option this time.
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