A month after the release of his damning report that called President Joe Biden an “elderly man with a poor memory,” Special Counsel Robert Hur testified before the House Judiciary Committee on Capitol Hill on Tuesday.
He sought to defend his investigation into Biden’s alleged mishandling of classified documents, his decision not to prosecute the 81 year old, and the details he provided in his report against criticism from both sides of the aisle.
On Tuesday’s show, Megyn was joined by attorneys Dave Aronberg and Mike Davis to discuss the testimony and what it revealed about some key elements of the controversy.
The Testimony
Throughout the hearing, Democrats raised concerns about Hur’s characterization of Biden’s memory in his report. He addressed the issue off the top in his opening statement.
HUR: 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 and 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.
Megyn believes Hur was well within his rights to include that information. “It did seem pretty uncontroversial to me,” she explained. That is, in part, because Hur decided he had to prove willfulness. “There’s been some criticism that he didn’t need to do that,” she noted. “But, in any event, he said, ‘My task was to determine whether the president retained or disclosed national defense information willfully with the intent to do something the law forbids. I couldn’t make that determination without assessing his state of mind.'”
While Hur stopped short of calling Biden “senile” when pressed by Rep. Scott Fitzgerald (R-WI), he also refuted the assertion from Rep. Pramila Jayapal (D-WA) that the report “exonerated” the president.
Biden’s Cognitive State
In Davis’ view, Hur’s decision to discuss Biden’s mental acuity was a means to let him off the hook. “Robert Hur says he can’t prove or there’s doubt whether he could prove willfulness because of Biden’s faulty memory,” he explained. “I think that Robert Hur, to put it legally, saved Biden’s ass here and the Democrats are furious because Robert Hur stated what everyone already knows, which is that Biden has a declining mental state.”
Aronberg disagreed. “As a Democrat, people on my side have been outraged by the fact that Hur included what seemed to be gratuitous comments about Joe Biden’s memory,” he said. “And it looks like, according to the latest reports with the transcript that has come out, that Biden did know the exact date that his son died.”
To be sure, Megyn referred back to an excerpt of the 250-page transcript between Hur and Biden that was released by The New York Times on Tuesday. It provides insight into two lingering questions – did Biden know the date of his son’s death, and who brought up the subject?
HUR: So during this time when you were living at Chain Bridge Road and there were documents relating to the Penn Biden Center, or the Biden Institute, or the Cancer Moonshot, or your book, where did you keep papers that related to those things that you were actively working on?
BIDEN: Well, um… I I , I , I , I don’t know. This is, what, 2017, 2018, that area?
HUR: Yes, sir.
BIDEN: Remember, in this timeframe, my son is– either been deployed or is dying, and, and so it was– and by the way, there were still a lot of people at the time when I got out of the Senate that were encouraging me to run in this period, except the president. I’m not– and not a mean thing to say. He just thought that she had a better shot of winning the presidency than I did. And so I hadn’t, I hadn’t, at this point– even though I’m at Penn, I hadn’t walked away from the idea that I may run for office again. But if I ran again, I’d be running for president. And, and so what was happening, though– what month did Beau die? Oh, God, May 30th–
RACHEL COTTON [White House lawyer]: 2015
UNIDENTIFIED MALE SPEAKER: 2015
BIDEN: Was it 2015 he had died?
UNIDENTIFIED MALE SPEAKER: It was May of 2015.
BIDEN: It was 2015.
ROBERT BAUER [Biden attorney]: Or I’m not sure the month, sir, but I think that was the year.
MARC KRICKBAUM [deputy special counsel]: That’s right, Mr. President. It–
BIDEN: And what’s happened in the meantime is that as– and Trump gets elected in November of 2017?
UNIDENTIFIED MALE SPEAKER: 2016
UNIDENTIFIED MALE SPEAKER: ’16
BIDEN: ’16, 2016. All right. So– why do I have 2017 here?
ED SISKEL [White House counsel]: That’s when you left office, January of 2017.
BIDEN: Yeah, okay. But that’s when Trump gets sworn in then, January–
SISKEL: Right.
BAUER: Right, correct.
BIDEN: Okay, yeah. And in 2017, Beau had passed…
In addition to the fact that Megyn said “nothing in that that suggests Biden is recalling anything,” she noted that it contradicts Biden’s claims at his February 8 press conference that Hur brought up his son Beau Biden’s death. “Hur is pressing him on where he kept papers related to work he did after he left the vice presidency in January 2017,” she explained. “There is not a single question here from Robert Hur about Beau Biden. It was Joe Biden who brought that up.”
You can check out Megyn’s full interview with Aronberg and Davis by tuning in to episode 744 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.