Independent Prosecutor Robert Hur’s report on President Biden’s defective storage of classified documents is devastating to the President and a political boon to his political opponents. But why is a prosecutor injecting himself into such matters?

Hur found that Biden “willfully” kept classified documents after his requisite clearance had ended and also showed those documents to others who did not have clearance to see them. But he also stated that as a prosecutor he would nevertheless be reluctant to present his findings before a jury. He opined that at trial jurors would likely see Biden as an “elderly man with poor memory” and that, therefore, he would likely not be able to secure a conviction and so he should, as a prosecutor, refrain from further legal action.

Politically, this is devastating. If the President could, to stretch the point a little, secure an acquittal based on his reduced mental competence then could this same President be relied on adequately to discharge the brutal duties of the challenging and draining office of the Presidency? If a jury could acquit him based on mental incompetence then would not such incompetence also, at the discretion of voters, disqualify him from one of the world’s most challenging offices?

Based on President Biden’s recent confusion of both the Presidents of France and Germany and then, in the very press conference responding to the special prosecutor’s report, he further confused the Presidents of Egypt and Mexico. This further shows that Biden’s weakening faculties are very real and very dangerous.

Tucker Carlson’s recent controversial interview with Vladimir Putin showed that, despite previous occasional intelligence reports suggesting that the latter was perhaps very ill, he instead remains a focused, intelligent, and vicious man on top of his game. President Xi in China and Ayatollah Khameini in Iran are likewise focused and ruthless men who have risen to the top of regimes where failure is punished by far worse than being relegated to being a Washington think tank pundit or senior law firm partner.

I shudder that in international affairs such a reduced American President is facing disciplined sharks actively seeking to acquire territory and hegemony over other states. It could make war more likely.

But, while solid evidence of the declining powers of our chief executive is valuable in itself, another key question is what role should a special prosecutor have in addressing such matters.

The task of prosecutors has been to determine whether there is enough evidence of a crime that would lead to a good chance of conviction and, if so, they should take the matter to trial. It is not in their remit, short of such prosecution for criminality, to give their appraisal of the moral or other worth of the subject of their investigation short of this standard. They should decide to prosecute the case or not and, if not, drop the matter.

Some have defended Hur on the grounds that he had to give some reason why he did not prosecute Biden and hence it was his duty to argue that this was because of the President’s reduced mental abilities. But he could have said that jurors might well think so and not offered his own verdict.

But special prosecutors too often now have a predilection to go beyond this circumscribed role. Because the subjects of their investigation are usually those in the government itself, including their superiors, they have usually been invested with necessary independent power. But, as Justice Scalia long ago pointed out in a lonely Supreme Court dissent, an independent “Special Prosecutor” not subject to the President or any other superior, would be, de facto, a fourth branch of government and thus a violation of the constitution.

Scalia’s dissent was then regarded as idiosyncratic and perverse but due to the travails of history it has become recognized as both prudential and correct. The key question now is who under the US constitution directs and limits such prosecutors. Constitutionally they cannot be totally independent actors.

The response has necessarily been a pragmatic one. While such prosecutors are properly under the direction of the President, the ultimate authority of the executive branch, we should seek to keep them as independent as possible, especially if they are investigating their own superiors, including the President. This is the perennial question – “who watches the watchers.” There is no clean answer to this question, nor is likely to be.

But, given this necessary ambiguity, how do we circumscribe the authority of such special prosecutors?

So far, not well.

Perhaps the type example of the difficulty was Robert Mueller’s multi-year investigation of then President Trump’s alleged collusion with Russian actors in the 2016 election. After an exhaustive years-long intensive investigation, Mueller successfully prosecuted tax violations by some Trump associates but found no evidence of any Russian collusion by Trump, nor indeed by any Americans whatsoever.

But, rather than leaving the matter there, as a normal prosecutor would do, Mueller offered a few hundred pages considering things that Trump may or may not have done that might be felonious or simply wrong.

But a regular prosecutor would have properly said that he had discovered no grounds to prosecute Trump and then simply shut up. Their opinions on otherwise good or bad conduct were neither here nor there. Trump’s opponents highlighted Mueller’s reflections on bad conduct but lamented that no charges were laid against him.

Similar concerns arise from prosecutor Hur’s comments on President Biden. As the true cliche has it, beware that the political tools, especially novel ones, that you use against others will in turn be used against you. 

Hur’s revealing comments properly worry those of us alarmed at President Biden’s diminished powers as he faces an increasingly hostile international environment with aggressive and intelligent actors.

But, barring extraordinary circumstances, this should not be an issue of criminal investigations. Prosecutors should prosecute or shut up. Let the rest of us decide on the fitness or otherwise of President Biden for continuing in political office. I am grateful for the illumination given by his comments, but without impugning his integrity, I think Robert Hur went beyond his duty.