Feb 12, 2024

The Biden special counsel report.

The Biden special counsel report.
Biden calling on a reporter during his press conference. Image: Screenshot / NBC News

Biden was cleared. But political damage was done.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

Biden was cleared of criminal wrongdoing, but the special counsel's report was still damaging. Plus, questions about Trump's classified documents case and all our latest content.


One of the benefits of having a growing team is that we can just bring you a lot more great content on a day-to-day basis. In case you missed it:

  • Podcast co-host Ari and I sat down with Daniel Bannoura, the founder of Ultimate Palestine, to hear his life story and discuss the conflict: Podcast here.
  • A new interview with Bill O'Reilly: Transcript here, podcast here, YouTube video here.
  • We are coming to New York City for a live event on April 17: Tickets here.

Quick hits.

  1. During oral arguments, the Supreme Court seemed skeptical that former President Donald Trump could be removed from Colorado's ballot under the 14th amendment. (The arguments
  2. Israel Prime Minister Benjamin Netanyahu reiterated his plans to send Israeli forces into Rafah, a city in Gaza that borders Egypt. Egyptian officials are threatening to suspend their decades-long peace treaty with Israel if they send forces into Rafah. (The threat
  3. The U.S. Senate advanced a $95 billion standalone foreign aid bill for Ukraine and Israel, one day after a package to combine that aid with border security failed. (The bill) Separately, after failing to inform the White House of a hospital stay earlier this year, Defense Secretary Lloyd Austin is back in the hospital with a bladder issue. (The hospitalization
  4. Former Fox News anchor Tucker Carlson aired a two-hour long interview with Russian President Vladimir Putin. (The interview) Separately, Ukrainian President Volodymyr Zelensky fired the country's top general. (The decision
  5. Former Maryland Gov. Larry Hogan (R) announced his intention to run for Senate. Maryland hasn't had a Republican senator in 37 years, but his decision is expected to make the state’s 2024 Senate race competitive. (The announcement)

Today's topic.

The Biden classified document special counsel report. In a 388-page report released Thursday, the Special Counsel investigating President Joe Biden's handling of classified documents cleared him of any criminal wrongdoing, but created a fresh political crisis for the White House with details about Biden's mental state during the investigation.

Robert Hur, the special counsel, determined that Biden had been sloppy in his handling of classified documents. Biden had willfully disclosed classified materials to a ghostwriter for a memoir he was preparing after his vice presidency and before his presidency. Some of the materials were his handwritten notes, which Biden viewed as his personal property, though they implicated sensitive intelligence sources. Other materials were military and foreign policy documents related to Afghanistan. 

Hur, a Republican appointee, made several distinctions between the Biden and Trump cases, including that Trump lied to investigators, refused to relinquish all the documents in his possession, and attempted to obstruct their investigation. Biden, on the other hand, consented to searches of his homes, immediately relinquished material, and sat for interviews with investigators.

In some instances, Hur found that Biden did not willfully retain classified documents and the decision not to prosecute him was “straightforward.” Hur noted, for instance, that Biden told the ghostwriter he had “just found” the items, but since they didn’t come up in further interviews or appear in the book, jurors would be convinced his keeping them was an innocent mistake. Mark Zwonitzer, the ghostwriter, deleted audio recordings from his interviews with Biden after learning of the special counsel’s investigation, but turned over transcripts. The FBI was later able to recover the deleted files, and ultimately decided not to prosecute Zwonitzer with obstruction. 

One of the reasons not to prosecute Biden that Hur cited immediately created a fresh political firestorm of its own.

“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,” the report said. Investigators who interviewed Biden, now 81 years old, described him as having "diminished faculties in advancing age," and said at various points in the interview process he could not remember which years he was vice president or when his son Beau died.

The details in the report touch on a particularly sensitive issue for Biden. In November, a New York Times/Siena College polling found that over 70 percent of voters in six battleground states agreed with the statement that Biden was “just too old to be an effective president.”

President Biden immediately held a press conference after the report’s release, emphasizing the report cleared him and criticizing some of Hur's comments, which his team called "shabby" work with "extraneous commentary."

“How the hell dare he raise that,” Biden said of the detail that he could not remember when his son Beau died. “Every Memorial Day we hold a service remembering him attended by friends and family and the people who loved him. I don’t need anyone, I don’t need anyone to remind me when he passed away.”

Biden also said the interviews were conducted in the two days after Hamas's October 7 attack in Israel, and stressed that he spent five hours sitting for the interviews despite being in the midst of an international crisis. However, toward the end of the press conference, Biden mistakenly referred to the president of Egypt as the president of Mexico.

Today, we're going to explore some reactions to the report from the right and left, then my take.

What the right is saying.

  • The right feels vindicated by the report and questions whether Democrats will continue to support Biden. 
  • Some suggest the report puts Democrats in a political bind: Admit Biden broke the law, or accept that he’s too old to serve. 
  • Others wonder if Democrats will move to replace Biden as their nominee. 

The Wall Street Journal editorial board asked “will Democrats continue to ignore the growing risks of the President’s mental frailties?” 

“Democrats are raging against Mr. Hur, but they should be grateful. Mr. Biden’s mental frailty is one reason Mr. Hur offered for not presenting the President’s document-mishandling as a criminal offense before a jury. His report is also forcing Democrats to confront the political reality that Mr. Biden’s decline could re-elect Donald Trump,” the board wrote. “Such decline is part of the human condition, and it’s not Mr. Biden’s fault. But what is his fault is telling the American people that he can capably serve another four years as President.”

“The voters can see this, which is why even most Democrats tell pollsters they doubt Mr. Biden is up to another term,” the board added. “This is dangerous politically for Democrats, but it’s also a grave risk for the country. The world is as dangerous as it’s been since the 1930s, with U.S. adversaries on the march. This would be challenging for a young, vigorous leader. It’s perilous for a President who will be 82 years old before a second inauguration and who is already showing visible signs of failing memory and lapsed concentration.”

In The Federalist, David Harsanyi wrote “either Biden is an ‘elderly man with a poor memory,’ or he needs to be charged.”

“Biden was cognizant enough to blatantly lie, first about not sharing classified material with a ghostwriter and then about not having ‘high classified’ documents in his possession,” Harsanyi said. “You remember those leaked pictures of folders marked classified splayed across the floor at Mar-a-Lago? This is the same. And, surely, the same people who spend inordinate amounts of time cheering on the prosecutions of Donald Trump understand that no one is above the law.”

“Double standards no longer matter, but this is a bit on the nose. Lots of Democrats argue that it’s different because Biden cooperated with authorities. First off, getting a lawyer and challenging charges leveled at you is well within the rights of any American. Second, Biden didn’t cooperate. A lawyer happened upon the classified information,” Harsanyi wrote. “Which leaves us with two questions: If Biden is too old to be charged, isn’t he too old to hold the most powerful position in the world? And if he’s not too old to hold the most powerful position in the world, why is he too old to be charged?”

In The Washington Examiner, Kaylee McGhee White argued “the Democratic Party doesn’t care about Joe Biden — it cares about power.”

Hur’s report was “a clear message that the DOJ and the Democratic establishment it represents are no longer willing to protect Biden politically. Hur surely could have found some other legal excuse for refusing to apply the law to Biden. And Attorney General Merrick Garland did not have to make the findings of Hur’s report public. It is not a far reach to assume that both decisions were calculated,” White said. “The Democratic establishment doesn’t care about reelecting Biden. It only cares about preventing Trump from being elected.”

“Now the polls show that Biden has lost whatever general election appeal he might have had. He has been behind Trump in all of the battleground states for weeks, and his approval ratings show no sign of recovery. And his continued gaffes and blunders will only exacerbate voters’ top concern about him: that he’s not fit to do the job. In short, Biden has become a liability. Whether the Democratic establishment succeeds in pushing him aside is another question. But there is no doubt at this point that it wants to. If Biden were smart, he’d bow out now while he has some dignity left.”

What the left is saying.

  • The left is concerned by Hur’s report and suggests the president needs to do more to counter it. 
  • Some say the press is incorrectly framing the report’s findings. 
  • Others lament that Biden and Trump are held to different standards by the media despite both making frequent gaffes.

The New York Times editorial board wrote about “the challenges of an aging president.” 

“Mr. Biden’s allies are already going to the usual Washington playbook of dismissing the special counsel’s report as partisan. Regardless of Mr. Hur’s motivation, the details that he presented spoke to worries voters already had. The president has to reassure and build confidence with the public by doing things that he has so far been unwilling to do convincingly. He needs to be out campaigning with voters far more in unrehearsed interactions. He could undertake more town hall meetings in communities and on national television. He should hold regular news conferences to demonstrate his command of and direction for leading the country.”

“The combination of Mr. Biden’s age and his absence from the public stage has eroded the public’s confidence. He looks as if he is hiding, or worse, being hidden. The details in Mr. Hur’s report will only heighten those concerns, which Mr. Trump’s campaign is already exploiting,” the board wrote. “This is a dark moment for Mr. Biden’s presidency, when many voters are relying on him to provide the country with a compelling alternative to the unique danger of Mr. Trump… He needs to do more to show the public that he is fully capable of holding office until age 86.”

In Just Security, Andrew Weissmann and Ryan Goodman argued “the Special Counsel report has been misinterpreted.”

Hur’s report “has been grossly mischaracterized by the press. The report finds that the evidence of a knowing, willful violation of the criminal laws is wanting,” Weissmann and Goodman said. “There is simply no case. Unrefuted innocent explanations is the sine qua non of not just a case that does not meet the standard for criminal prosecution – it means innocence. Or as former Attorney General Bill Barr and his former boss would have put it, a total vindication.”

“The press has gotten the lede wrong,” they added. “What the report actually says is there is insufficient evidence of criminality, innocent explanations for the conduct, and affirmative evidence that Biden did not willfully withhold classified documents. Put another way, that same sentence about ‘our investigation uncovered evidence’ could equally apply to Mike Pence, who had classified documents at his home, which is similarly some ‘evidence’ of a crime, but also plainly insufficient to remotely establish criminality.”

In Vox, Andrew Prokop said “Biden and Trump are both old. Only one got a special counsel memory test.”

“Though Trump is being prosecuted in four different criminal cases, he has not yet been unlucky enough to have a special counsel publicly weigh in on his mental fitness. Biden’s the one who now has that problem,” Prokop wrote. “Hur’s report may seem at first glance to bolster the GOP case. But on a closer read, the examples of Biden’s poor memory or verbal mix-ups are similar to verbal flubs Trump has publicly made in recent months.”

“Consider that all of the following has happened in recent months: Trump has said either that Barack Obama is president or that he had run against Obama for the presidency at least seven times… Trump mixed up Nikki Haley and Nancy Pelosi, claiming Haley was in charge of security at the US Capitol on January 6, 2021. During a deposition, Trump identified a picture of E. Jean Carroll, who accused him of rape, as a picture of his ex-wife Marla Maples,” Prokop said. “Both of our presidential nominees-in-waiting are inexact speakers of advanced age who get mixed up on the facts”

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • It’s good news for Biden that he won’t be prosecuted from this case, which is very different from Trump’s.
  • The details of Hur’s dismissal are terrible news for Biden, and it outweighs the good news.
  • Concern about Biden’s age is not going to go away before November.

I know this isn't the story now, but given that this was an investigation into Biden's handling of classified documents, I do think it is worth starting there.

It is good news for Biden that he won’t be prosecuted. Hur genuinely did clear him of most wrongdoing, and explained in pretty significant detail why Biden's classified documents case is not worth prosecuting and how it’s very different from Trump's. Some writers like David Harsanyi (under "What the right is saying"), who claimed "this is the same," are simply wrong to equate the two. Again: Hur concedes there is very little evidence Biden ever willfully or knowingly mishandled these documents, and his cooperation is detailed at length. The investigation into Trump concluded almost the polar opposite: That he intentionally took them, never disclosed them, and then obstructed the investigation into his mishandling.

From a political perspective, the issue — obviously — is that how Trump or Biden handled classified documents is not going to be very important to most voters. I've been saying that long before this report was released. Trump's legal issues are a very real threat to his candidacy, but I think a guilty verdict in the classified documents case would be perhaps the least damaging. For Biden, that he was ever under investigation for an almost identical reason was always going to nullify the use of Trump's handling of classified documents as a political weapon. Now, even if Trump does get convicted, the result of these two investigations might even end up being more damaging for Biden than Trump.

On Thursday, my podcast co-host Ari and I were just about to begin our interview with Danniel Bannoura from Ultimate Palestine when the report dropped. My reaction was genuine shock — both that the special counsel included these details in his report and at just how politically damaging the details are for Biden.

I understand why some people criticized Hur and believe these comments were inappropriate or extraneous. I disagree. I think this kind of detail is important, and I think the American public should know the fine points of how investigations proceed. Even conceding the left’s argument that including this detail is unusual, I think it would have been far more egregious and corrupt to conceal what happened in these interviews from the country. What Hur saw and reported is apparent to most Americans who watch Biden in interviews or press conferences, which are already few and far between.

There is a lot of data out there about the threat Biden's appearance and age poses to his re-election bid. We got more of it over the weekend, when ABC/Ipsos released a new poll showing 86% of Americans view President Biden as too old for a second term (for what it’s worth, 62% feel that way about Trump, too). The details Special Counsel Robert Hur put in writing — that Biden struggled to remember things, that interviews moved painfully slow because of his mental acuity, and that jurors would be sympathetic to him as an elderly man — are not going to improve those numbers.

All of this is going to ramp up pressure on Biden and Democrats to solve this issue which, to me, looks unsolvable. Biden and his surrogates can run the best campaign in American history but they aren't going to convince voters of the things they can see and read right in front of them. Even in the clean-up, the waters were choppy. I actually thought Biden did well until the end of his press conference — he was adversarial, stern, and clear. But then he referred to President Abdel Fattah El-Sisi of Egypt as the President of Mexico, and the very thing he was trying to reassure people about was right back front and center.

This isn't going to go away.

A lot of friends texted me over the weekend asking if Democrats would replace Biden, and the answer is clearly no. They aren't going to change course unless their hand is absolutely forced — and even if they wanted to, they’ve long since missed their opportunity. Plenty of people have also suggested that Vice President Kamala Harris is the real problem, as voters concerned with Biden’s age are also worried about her having to assume the office. Similarly, I see very little chance she is replaced on the ticket, and all indications point to the Biden campaign leaning into her as his running mate and rehabilitating her image with the public. 

The election is still eight months away, but each side’s talking points are being clarified: Biden will frame Trump as a criminal bully who is a threat to democracy who fumbled the pandemic and isn't fit to be president, while Trump will frame Biden as a dementia-raddled old man who left the border open and ruined the economy.

As we keep relearning, a lot can happen in a week — let alone a month. But for now, Trump just got a lot more ammunition for his narrative. Rather than finding absolution, Biden has run headfirst into one of his biggest weaknesses in this election, and you can expect this report to come up over and over again between now and November.

Disagree? That's okay. My opinion is just one of many. Write in and let us know why, and we'll consider publishing your feedback.

Your questions, answered.

Q: Why can’t the case of Trump taking classified records proceed? This does not involve presidential immunity.

— Ron from Oak Harbor, Ohio

Tangle: Actually, Trump's classified documents case is proceeding on schedule, and the legal arguments in his other cases aren’t impacting it. Presidential immunity isn’t something Donald Trump has argued in his classified documents suit that, like his federal election interference case, is being brought by Special Counsel Jack Smith. He’s arguing that he had the executive privilege of document declassification as president, and could therefore keep whatever records he wanted. That isn’t the only argument Trump has used — just the most recent one.

As a reminder, when we last covered the case in June, Trump had already argued that he didn’t have the documents, then that evidence of them was planted, then that he had retroactively declassified them. He also argued, before the investigation into President Biden was even opened, that other presidents have left office with documents and that an inconsistent standard was being applied to him.

While his other arguments haven’t been very convincing, we got a reminder today why what appears to be Trump’s most convincing defense — that this prosecution represents an inconsistent standard — may also end up being insufficient. Unlike Biden, Trump has been accused of obstructing efforts to retrieve the documents he retained by conspiring with aide Walter Nauta and Mar-a-Lago property manager Carlos De Oliveira to move the documents and conceal them.

Lastly, Smith and the Justice Department allege Trump to have retained a much greater number of documents, some of which are alleged to contain the highest level of classified information. It’s the logistics around retrieving those documents, as well as coordinating with former President Trump’s other trials and candidate Trump’s campaigning, that have affected the trial date, not a pending argument about immunity. 

In July of last year, U.S. Judge Aileen Cannon of the Southern Florida District set a trial date for May 20, and the case appears to be proceeding on schedule. While I write this on Monday, February 12, Trump is appearing before Judge Cannon in a ‘Sensitive Compartmented Information Facility’ in Fort Pierce, Florida. The way the legal arguments proceed from here will be a separate story, but presidential immunity probably won’t play a big factor.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

Robert F. Kennedy Jr. apologized to his family on Sunday for a super PAC ad that ran during the Super Bowl promoting his presidential campaign. The ad, which cost $7 million, relied heavily on imagery from former President John F. Kennedy’s 1960 presidential campaign. Members of his family criticized the ad and the use of JFK’s likeness. “I’m so sorry if the Super Bowl advertisement caused anyone in my family pain. The ad was created and aired by the American Values Super PAC without any involvement or approval from my campaign. FEC rules prohibit Super PACs from consulting with me or my staff. I love you all. God bless you,” Kennedy said. However, the ad was shared by his team on X immediately after airing and is still pinned atop his profile. The Hill has the story


  • 38%. The percentage of Americans who think Biden should have been charged with a crime for his handling of classified documents after he left office as vice president, according to a new ABC News/Ipsos poll.
  • 34%. The percentage of Americans who think Biden should not have been charged with a crime for his handling of classified documents after he left office as vice president.
  • 63%. The percentage of U.S. voters who say they have doubts about Joe Biden’s fitness to serve as president, according to a January 2024 poll by Harvard CAPS/Harris.
  • 69%. The percentage of U.S. voters who say Joe Biden has shown he is too old to be president. 
  • 59%. The percentage of Americans who say both President Biden and former President Trump are too old to serve another term as president.
  • 64%. The percentage of U.S. voters who say the country needs another choice for president besides Biden and Trump. 

The extras.

  • One year ago today we had just written a Friday edition about what we got wrong about the Trump-Russia investigation.
  • The most clicked link in Thursday’s newsletter was the five Marines killed in a helicopter crash near San Diego.
  • Send a message: 1,082 readers responded to our survey asking about Jennifer Crumbley’s conviction for her son’s mass shooting with 55% agreeing with the verdict but hoping for a lenient sentence. 18% agree with the verdict and hope for a high sentence, 25% disagree with the verdict but think she bears some responsibility, and 1% disagree with the verdict and think she bears no responsibility.
  • Nothing to do with politics: This year’s top ten best Super Bowl ads (was Michael Cera robbed?)
  • Take the poll. How does the dismissal of President Biden’s classified documents case affect your likelihood to vote for him in November ? Let us know!

Have a nice day.

Thanks to a scientific fertility breakthrough, there’s a new hope for the northern white rhino, a species that only has two remaining members on the planet. This month, scientists have achieved the world's first IVF rhino pregnancy, transferring a lab-created rhino embryo into a surrogate mother. The procedure was carried out with southern white rhinos, a closely related sub-species, and next will be done with northern white embryos. "I think with this achievement, we are very confident that we will be able to create northern white rhinos in the same manner and that we will be able to save the species," said Susanne Holtze, a scientist at Leibniz Institute for Zoo and Wildlife Research in Germany. The BBC has the story.

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