WASHINGTON — When Andrew Weissmann, a former Justice Department prosecutor, was working on the so-called Mueller Report, he and his team were intent on making sure the finished product was in no way salacious.
“There was an effort to not use adjectives and adverbs,” he said, recalling the writing of a highly anticipated 2019 document that laid out special counsel Robert Mueller’s investigation of allegations of collusion between former president Donald Trump’s 2016 campaign and Russian operatives. The discretion was necessary because the report did not recommend criminal charges against Trump.
“The DOJ policy is essentially, put up or shut up,” said Weissmann, a top deputy to Mueller, explaining that prosecutors who don’t file charges need to be very careful with what they say about the subjects of their investigations.
So Weissmann found it inappropriate Thursday when the special counsel report into President Biden’s improper possession of classified documents before he became president cleared him of wrongdoing but made politically damaging statements about his memory and self-regard in the process.
“It all struck me as completely gratuitous, and a complete repeat — to put it in the vernacular, we’ve seen this movie before,” said Weissmann, comparing the report to former FBI director James Comey’s 2016 statement that called then-presidential candidate Hillary Clinton “careless” in her management of emails, even as he said investigators had not found evidence she intended to violate the law.
In addition to shocking some veteran prosecutors, the acerbic language in the report by special counsel Robert K. Hur, a Republican, produced immediate fodder for Biden’s GOP rivals and angered the president and Democrats across Washington. Biden sought to defend himself in a hastily arranged news conference Thursday night, but as it ended, made another verbal gaffe in which he called the president of Egypt the president of Mexico. This only underscored the fact that, in 2024, the issues of age, memory, and fitness to serve are not going away anytime soon.
Biden, 81, the oldest president in American history, is almost certain to face a rematch with Trump, 77, who would be the second-oldest president in history if reelected. And both have struggled to beat back criticism over Father Time.
“The White House is not a taxpayer-subsidized nursing home,” former South Carolina governor Nikki Haley, Trump’s last remaining GOP challenger, said in a statement Friday that accused Biden of lacking “the mental capacity to effectively serve” and added that Trump “has his own mental deficiencies” such as “temper tantrums” and confusion.
“I have long said the first party to retire its 80-year-old candidate will win the White House,” Haley added.
Both men have mixed up words and names in public. Trump recently seemed to confuse Haley with former House speaker Nancy Pelosi and has also mixed up foreign leaders. But Biden has been subject to more age-related scrutiny than Trump. During his presidency, he has tripped on camera and made numerous verbal flubs that have rattled Democrats and been played on repeat on right-leaning cable news networks. More than three-quarters of voters are concerned about Biden’s age, according to an NBC poll, and even Biden’s supporters sometimes bring up the matter unprompted in interviews.
Biden, however, tries to laugh off the issue with jokes about him knowing the Founding Fathers — when he brings it up.
So the language in the report that referred to Biden as “a sympathetic, well-meaning, elderly man with a poor memory” reverberated across the political spectrum.
The special prosecutor wrote that the department had not gathered sufficient evidence to prove Biden had knowingly and intentionally committed a crime. It pointed out that Biden had cooperated and handed over documents as soon as they were discovered, contrasting his behavior with that of Trump, who repeatedly rebuffed attempts by the authorities to get back classified documents he retained after his presidency. Trump was charged by special counsel Jack Smith last summer.
But, in laying out his reasoning for not charging Biden, Hur offered possible motives for Biden’s retention of the documents. For example, Hur suggested Biden saw himself as a “historic figure” who kept documents related to his opposition to a troop surge during the Afghanistan war to show he was on the right side of history. Hur also repeatedly impugned Biden’s memory, saying the president was unable to remember dates, including those of his son’s death or the end of his vice presidency, and suggesting a jury might even let him off as a result.
“Mr. Biden would likely present himself to a jury, as he did during our interview with him, as a sympathetic, well-meaning, elderly man with a poor memory,” the report said.
Biden sought to reframe that line directly on Thursday night.
“I am well meaning,” he said. “I am an elderly man. And I know what the hell I’m doing.”
Weissmann suggested language like that represented an overreach by Hur.
“You are supposed to show judgment and restraint in how you exercise [a prosecutor’s] power,” Weissmann said. “I didn’t think that was true for James Comey, and I don’t think it’s true for Rob Hur.”
Renato Mariotti, a partner at the law firm Bryan Cave Leighton Paisner in Chicago and a former federal prosecutor, speculated Hur might have been trying too hard to defend his decision not to charge Biden.
“I think that there is valid concern that Mr. Hur was trying to explain to members of his own party why he was suggesting charges were not warranted for the president of the opposing party,” Mariotti said.
In a poll conducted Friday, after the release of the special counsel report, YouGov found 47 percent of adults said Biden’s health and age would “severely limit his ability to do the job” in another term, compared to 32 percent for Trump.
Republicans on Capitol Hill immediately seized on the report to depict Biden as unfit for office, with some, including Missouri Senator Josh Hawley, taking to social media to suggest he be removed from office via the 25th Amendment.
Senator Marco Rubio, a Florida Republican, said he was concerned about the implications globally of the report’s description of Biden.
”Apart from being sad, it’s a national security threat to the country because they read that same report in Beijing and Moscow and Tehran,” Rubio said.
Democrats immediately moved to defend Biden. On Friday, Vice President Kamala Harris, a former prosecutor, described some of the language in the report as “gratuitous, inaccurate, and inappropriate.”
She and other allies of the president have pointed out he participated in interview’s with Hur’s team in the hours and days after the Hamas attack on Israel on Oct. 7.
“He was in front of it all, coordinating and directing leaders who are in charge of America’s national security, not to mention our allies around the globe, for days, and up until now, months,” she said in response to a reporter’s question at the White House.
“So the way that the president’s demeanor in that report was characterized could not be more wrong on the facts and clearly politically motivated,” she said.
Yet their defenses of the president still sought to minimize the issue of Biden’s age, rather than to tackle it directly.
Senator Elizabeth Warren of Massachusetts said polls show Americans are more concerned about Biden’s age than Trump’s simply because they haven’t started focusing on the presidential race.
“We’re not in the fight yet. I think when people start getting into the focus that this is Biden vs. Trump then the whole world starts to look different,” Warren said.