Willfully yours

Special Counsel Robert Hur found that President Biden willfully mishandled documents subject to the Espionage Act provision set forth in 28 U.S.C. § 793(e). However, Hur clouded the “willfulness” element of the offense by resting his non-prosecution recommendation in part on Biden’s present senility. Hur presents his analysis of the element of “willfulness” under section 793 in Chapter Nine of his report.

The relevant question is whether Biden committed the acts “willfully” at the relevant time. Hur had a smoking gun or two to prove the “willfulness” element of the offense. Among other things, however, he suggested that a jury would be reluctant to convict someone as out of it as Biden is and imputed the jury’s likely reluctance to Biden’s present inability to act “willfully” beyond a reasonable doubt. See, for example, Chapters Eleven and Twelve of the report.

Just to give an idea of the evidence Hur compiled, the Wall Street Journal’s James Freeman highlights a few passages from Hur’s report. Freeman quotes this from Chapter Twelve:

As with the classified Afghanistan documents [discussed in Chapter Eleven], there is evidence that Mr. Biden kept his notebooks after his vice presidency knowing they were classified and he was not allowed to have them.

The evidence shows convincingly that Mr. Biden knew the notebooks, as a whole, contained classified information. For eight years, he wrote in his notebooks about classified information during classified meetings in the White House Situation Room and elsewhere. He was familiar with the notebooks’ contents, which included obviously classified information. When reviewing the notebooks with [Biden ghostwriter Mark] Zwonitzer, Mr. Biden sometimes read aloud classified notes verbatim, but he also sometimes appeared to skip over classified information, and he warned Zwonitzer that the material in the notebooks could be classified. Mr. Biden also stored the notebooks in a classified safe in the White House for a time as vice president because the notebooks were classified.

In Mr. Biden’s written answers to questions from our office, he called into question whether he knew the information in his notebooks was classified. In those answers, Mr. Biden explained that when he described material in his notebooks to Zwonitzer as “classified’’ he did not actually mean “classified.” According to Mr. Biden, “I may have used the word ‘classified’ with Mr. Zwonitzer in a generic sense, to refer not to the formal classification of national security information, but to sensitive or private topics to ensure that Mr. Zwonitzer would not write about them.” Mr. Biden qualified this answer by explaining, “I do not recall the specific conversations you reference with Mr. Zwonitzer, which took place more than six years ago.”

This explanation-that “classified” does not mean “classified”-is not credible. At the time Mr. Biden met with Zwonitzer, Mr. Biden had nearly fifty years of experience dealing with classified information, including as a member of the Senate Select Committee on Intelligence, a member and Chairman of the Senate Committee on the Judiciary, a member and Chairman of the Senate Committee on Foreign Relations, and Vice President of the United States. It is not plausible that a person of his knowledge and experience used the term “classified” in this context as a euphemism for “private.”

Hur discusses the existence of grounds for reasonable doubt regarding Biden’s willfulness at the time of the acts (i.e., evidence that Biden thought the notebooks were his personal property), but falls back on Biden’s subsequent incompetence (my word, not Hur’s). If Biden thought they were his personal property, why did he lie about the meaning of “classified”? As I wrote yesterday, Hur’s analysis has the quality of a student working backward from the known answer to a question. Hur thus concludes Chapter Twelve:

Given the intelligence and military officials present and the topics discussed at the meetings Mr. Biden recounted for Zwonitzer, Mr. Biden should have realized that his notes did or were likely to contain classified information. But taken as a whole, the evidence will likely leave jurors with reasonable doubts about whether Mr. Biden knew he was sharing classified information with Zwonitzer and intended to do so. For these jurors, Mr. Biden’s apparent lapses and failures in February and April 2017 will likely appear consistent with the diminished faculties and faulty memory he showed in Zwonitzer’s interview recordings and in our interview of him. Therefore, we conclude that the evidence does not establish that Mr. Biden willfully disclosed national defense information to Zwonitzer.

I thought someone would press Hur on the “willfulness” issue at the hearing. Rep. Ken Buck, who declared he’s outta here next week, came the closest to getting at it toward the tail end of the five-hour hearing (video below). Even within the five-minutes limiting each round of questions — Buck could have omitted his introductory remarks and gotten to the point — Buck almost got there, but this ain’t horseshoes.

Hymn to Hur

Special Counsel Robert Hur testified for some five hours before the House Judiciary Committee yesterday on his investigation into President Biden’s mishandling of classified documents over his too long career in public life. I have posted the Washington Post’s YouTube video of the hearing at the bottom. At the same time, transcripts of Hur’s interview of Biden in the investigation were released: October 8 (99 pages) and October 9 (157 pages).

Mr. Techno Fog provided his hot take on the transcripts here (“confusion, evasion, and outright lies”). David Harsanyi cut to the chase in the Federalist column “Turns out Biden lied.” The Free Beacon’s Andrew Kerr reviews both Hur’s testimony and the Biden transcripts in “Interview Transcript, Congressional Testimony Shed Light on Biden’s Memory Lapses During Classified Doc Investigation.”

Hur confined his testimony to the four corners of the lengthy report he submitted to Attorney General Merrick Garland. Whenever he was asked about the facts of the case, he referred to the report’s findings. He demonstrated perfect poise and complete mastery of the case as set forth in his report.

It should go without saying that Hur knew his case, but contrast Hur’s grasp of the case with Robert Mueller’s failure to launch at the comparable hearing held following his Russiagate investigation. To put it charitably, Mueller appeared to be a figurehead who performed at best as an innocent bystander to an investigation run and conducted by others (e.g., Andrew Weissmann). Trump fans who harbor lingering animosity against Attorney General William Barr don’t understand that Mueller’s investigation would still be alive if it weren’t for Barr.

The House Democrats sought to impute a finding of “complete exoneration” of Biden to Hur. Hur begged to disagree. Hur was admirably noncompliant in the face of the Democrats’ efforts to put words in his mouth. The Free Beacon’s video of highlights (below) shows that “complete exoneration” misses the mark. As Hur put it in his opening statement, Hur “identified evidence that the President willfully retained classified materials after the end of his vice presidency, when he was a private citizen.” This evidence contradicted everything Biden himself has said in public about the case, although lying to the public is not a crime. It is standard operating procedure.

Hur was criticized for resting his recommendation of non-prosecution on Biden’s senility. Hur explained that he was required to “show [his] work” supporting his recommendation of non-prosecution. Hur reminded me of how I showed my work in solving high school physics problems. I began with the answer and worked back from there.

In Hur’s case, the answer was non-prosecution. A voice in his head from the film Network must have counseled caution: “Don’t do it, buddy! You’re a young man! You got your whole life ahead of you!” Hur’s explanation of the difficulty of obtaining a guilty verdict in the case was little more than absurd (as was his distinction of the Biden case from the Trump case).

In the course of his overlong political career, Biden has been a serial violator of the national security law. He is heedless to it. His misconduct is egregious. And he is a senescent dolt with the possible reservation that in some instances he may be senile like a fox. I don’t recall when “I don’t recall” was ever so plausible.

I would like to include one positive observation in these remarks. I was impressed by the demeanor of two congressmen whose names I had not even heard before. I don’t know anything else about them except what I saw yesterday. I am referring to Republican Ben Cline of Virginia and Democrat Glenn Ivey of Maryland.

However, yesterday’s hearing was incredibly depressing. It represents the dire condition of our politics. We have clownish Democrats volubly insisting on the things which are not. We have the exhibition of the two-tiered system of justice that Democrats have fashioned to resolve the problem of Donald Trump and other annoyances. We have the continuing exposure of the mental incompetence of the president of the United States. We have the mainstream press acting as the Democrats’ public relations arm.

Him or Hur?

Politico Playbook previews the testimony later this morning of Special Counsel Robert Hur before the House Judiciary Committee. Hur is to testify on the report of his investigation of Joe Biden’s mishandling of classified documents (i.e., the report submitted to Attorney General Merrick Garland). The Playbookers have obtained and posted Hur’s opening statement here. These are the operative paragraphs:

My report reflects my best effort to explain why I declined to recommend charging President Biden. I analyzed the evidence as prosecutors routinely do: by assessing its strengths and weaknesses, including by anticipating the ways in which the President’s defense lawyers might poke holes in the government’s case if there were a trial and seek to persuade jurors that the government could not prove his guilt beyond a reasonable doubt.

There has been a lot of attention paid to language in the report about the President’s memory, so let me say a few words about that. My task was to determine whether the President retained or disclosed national defense information “willfully”—meaning, knowingly and with the intent to do something the law forbids.

I could not make that determination without assessing the President’s state of mind. For that reason, I had to consider the President’s memory and overall mental state, and how a jury likely would perceive his memory and mental state in a criminal trial. These are the types of issues prosecutors analyze every day. And because these issues were important to my ultimate decision, I had to include a discussion of them in my report to the Attorney General.

The evidence and the President himself put his memory squarely at issue. We interviewed the President and asked him about his recorded statement, “I just found all the classified stuff downstairs.” He told us that he didn’t remember saying that to his ghostwriter. He also said he didn’t remember finding any classified material in his home after his vice presidency. And he didn’t remember anything about how classified documents about Afghanistan made their way into his garage.

My assessment in the report about the relevance of the President’s memory was necessary and accurate and fair. Most importantly, what I wrote is what I believe the evidence shows, and what I expect jurors would perceive and believe. I did not sanitize my explanation. Nor did I disparage the President unfairly. I explained to the Attorney General my decision and the reasons for it. That’s what I was required to do.

This is confused and confusing. Did Hur base his non-prosecution decision on his putative inability to prove the mental element of the possible offenses? Hur implies it is “willfulness,” although “gross negligence” would have sufficed to prove the offense under 28 U.S.C § 793. Or did he base his non-prosecution decision on a jury’s anticipated pity for a senile dolt? I trust that some members of the committee will home in on this issue this morning.

Get a Load of Fani

Fani Willis’s prosecution of Donald Trump has descended into comedy, currently of the bedroom farce variety. As all the world now knows, Willis carried on a torrid affair with Nathan Wade, whom she hired to lead the Trump prosecution and to whom she paid an extraordinary amount of taxpayer money, and then helped him spend it. That is corruption of the most old-fashioned sort. Willis and Wade have claimed that their affair did not begin until 2022, some time after she hired him to prosecute Trump.

Which turns out to be a lie:

Phone records, recently unveiled in new court documents obtained by The Post, indicate a pattern of late-night visits by Wade to Willis’s apartment, raising questions about the timeline of their relationship.

According to the cellphone data presented in court, Wade frequented the vicinity of Fulton County District Attorney Willis’s condo in Hapeville at least 35 times before their confessed affair.
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[Investigator Charles] Mittelstadt highlighted times that refuted both Wade’s and Willis’s testimony that they had not begun a relationship prior to November 2021, and that he had only visited the apartment on occasion to discuss business.

“I was directed into a deeper analysis on two specific dates: September 11-12, 2021 (before I understand Mr Wade was hired) and November 29-30 (prior to what I understand was the in-court testimony that the romantic relationship began in 2022).

“Specifically, on September 11, 2021, Mr Wade’s phone left the Doraville area and arrived within the geoface located on the Dogwood address [Willis’s condominium] at 10.45pm,” Mittelstadt said.

“The phone remained there until September 12 at 3.28am at which time the phone traveled directly to towers located in East Cobb consistent with his routine pinging at his residence in the area. The phone arrived in East Cobb at approximately 4.05am, and records demonstrate he sent a text at 4.20am to Ms Willis.

“Additionally, on November 29, 2021, Mr Wade’s phone was pinging on the East Cobb towers near his residence and, following a call from Ms Willis at 11.32pm, while the call continued, his phone left the East Cobb area just after midnight and arrived within the geofence located on the Dogwood address at 12.43am on November 30, 2021. The phone remained there until 4.55am,” he added.

Willis and Wade are the most famous illicit couple since Peter Strzok and Lisa Page. Like Strzok and Page, Willis and Wade appear to have made texting and phoning one another a full-time job:

Mittelstadt’s report also showed Wade and Willis had made more than 2,000 voice calls to each other and exchanged just less than 12,000 text messages over an 11-month period in 2021.

It makes you wonder when Wade found time to rack up all those billable hours.

I don’t know what the future holds for Donald Trump, but I think we can confidently predict that the Sun soon will set on Fani Willis’s political career.