WASHINGTON — President Joe Biden’s legal team is frustrated over the findings and tone of special counsel Robert Hur’s report, several letters leaked Thursday between Biden’s attorneys and top Justice Department officials show.
A key exchange of letters viewed by NBC News occurred the day before the Justice Department released Hur’s report, in which Hur explained his decision not to prosecute Biden over his handling of classified documents after he left office as vice president even while he said Biden’s practices “present serious risks to national security.”
The letters were first reported by The Washington Post and Politico.
The White House and a spokesperson for Biden’s personal attorney Bob Bauer declined to comment.
In a three-page letter on Feb. 7, Bauer and White House counsel Edward Siskel objected to a final draft of Hur’s report that they said “openly, obviously, and blatantly” violated Justice Department policy and practice and consensus about limitations to special counsel reports.
The Feb. 7 letter was addressed to Attorney General Merrick Garland during the White House counsel’s review of the special counsel’s final draft for executive privilege issues.
It argues that other presidents “have done exactly the same thing” by retaining classified information at home after they served.
“So, to criticize President Biden for a practice that his predecessors openly engaged in, a practice that the Justice Department has in the past acknowledged and declined to investigate, a practice that is not charged conduct, exemplifies the reasons why a bipartisan consensus arose to change the prior report writing function,” they wrote.
Biden’s legal team further argued that Hur’s criticism of Biden “mirrors” former FBI Director James Comey’s “inappropriate prosecutor criticism” in 2016 of Democratic presidential candidate Hillary Clinton, whose handling of classified material similarly resulted in no charges.
“The FBI and DOJ personnel’s criticism of uncharged conduct during investigations in connection with the 2016 election was found to violate ‘long-standing Department practice and protocol,'” they wrote.
The letter also objected to “denigrating statements” about Biden’s memory that were “uncalled for and unfounded.”
“The Special Counsel can certainly and properly note that the President lacked memory of a specific fact or series of events,” they wrote, adding that Hur’s allegation about Biden’s memory’s failing more broadly “has no law enforcement purpose.”
The lawyers also say Hur left out “crucial context” about Biden’s interview with Hur in October, as Biden grappled with “a grave international crisis,” just a day after the Oct. 7 terrorist attacks on Israel.
The Justice Department responded defending Hur’s report, including its references to Biden’s memory, hours before it was released.
A letter on Feb. 8, signed by the Justice Department’s top career official, Associate Deputy Attorney General Bradley Weinsheimer, stated flatly that the Justice Department did not violate any department policies and was not engaging in any improper conduct.
“The context in which this information is used in the report makes it appropriate under Department policy and the Special Counsel regulations,” he wrote.
“The identified language is neither gratuitous nor unduly prejudicial because it is not offered to criticize or demean the President; rather, is it offered to explain Special Counsel Hur’s conclusions about the President’s state of mind in possessing and retaining classified information,” the letter added.
The Justice Department letter further contended that the report did not include inappropriate comments about uncharged conduct, instead saying that such a disclosure is permitted if it advances “a significant law enforcement interest, including upholding the integrity of the investigation, and whether the public has a significant need to know the information.”
“For these reasons, inclusion of the identified language in the report and the report itself fall well within the Department’s standards for public release,” it said. “The report addresses whether the President, as a private citizen, mishandled classified information in violation of criminal laws. This sits near the apex of the public interest. The report and its release, including the identified language, are consistent with Department policies and practice.”
The Justice Department also rejected the mention of Comey, calling the comparison “inapt.”
“Former Director Comey was not a Special Counsel, prosecutor, or Department official charged or approved to announce a declination decision,” Weinsheimer wrote.
NBC News has reported that Hur is expected to testify March 12 before the Republican-led House Judiciary Committee, according to two sources familiar with the matter.
Several House Republican leaders have also asked Garland for a full transcript of Biden’s interview with the special counsel in October, saying it will aid them in determining whether the evidence supports drafting articles of impeachment against Biden.
