Below is my column in the New York Post on reports that Special Counsel Robert Hur has finally interviewed President Joe Biden on allegations that he removed and retained classified material going back to his time as a United States senator. The problem facing Hur could be what to do if he actually finds evidence of a crime.
Here is the column:
A neutron and Special Counsel Robert Hur walk into a bar and order two drinks.
When Hur asks how much they owe, the bartender responds, “come on, for you guys, you know there’s never a charge.”
Unfortunately, for the prosecutor tasked with investigating President Joe Biden, it may not prove a laughing matter.
In many ways, Hur is the neutron prosecutor.
He may have spent two days interviewing Biden on the discovery of classified material going back decades in various offices and home locations.
But we already know that the Justice Department has long maintained a policy against the charging of a sitting president.
There are no such problems for Hur’s colleague.
Jack Smith was appointed to investigate former President Donald Trump. He is the ultimate proton prosecutor.
Smith has aggressively pursued Trump in two different jurisdictions with a long litany of charges, including alleged criminal conduct tied to his removal and retention of classified material.
In comparison, Hur appeared to disappear.
There was no word of any grand jury or the issuance of subpoenas. His interview this week was the sign of life for a prosecutor who seemed headed for milk cartons.
I have long disagreed with the Justice Department policy as without foundation in the Constitution.
There is no question that the best course in dealing with a felonious president is to first remove the president from office through the impeachment process and then indict the former president in the wake of the Senate conviction.
However, even the Justice Department admitted in reaching this policy during the Clinton administration that “[n]either the text nor the history of the Constitution” is “dispositive” on this question.
It simply rendered an internal opinion against indictments of a sitting president as a matter of “considerations of constitutional structure.”
That is particularly a problem in what could be a strong case.
We still do not know whether fingerprints were taken off the documents found in various locations associated with the President.
Unlike Smith’s investigation, there have been no strategic leaks from Hur’s investigation.
On its face, the President claims that he had no knowledge of these documents appears dubious at best.
Some classified material reportedly goes back to Biden’s time as a senator — material that he would have had to remove from a sensitive compartmented information facility or secure room on Capitol Hill.
More importantly, the documents from the Obama Administration were removed when Biden left as vice president.
They were then divided and repeatedly moved to different locations. That suggests not just knowledge but a purpose.
Why were they divided and some documents were found in his garage and possibly his library?
If Hur found fingerprints that contradict Biden’s statements, he could face not just some of the same charges brought against Trump but also possible false statement or obstruction charges.
Notably, Biden used counsel to conduct searches and (as in the Trump case) additional classified materials were found after the Biden team said that they had finished their searches.
There are serious questions over whether, in allowing uncleared counsel to search through these documents, evidence may have been lost in how they were stored or appeared in locations like the garage.
Hur can bring charges against third parties, who would not be barred from indictment under the DOJ policy.
But what does Hur then do if he has evidence against the President himself?
He could wait to see if Biden does not run for reelection or loses in 2024.
He could ask for a reconsideration of the policy, which was poorly supported during the Clinton Administration as a rationale for blocking any indictment for perjury by the Office of Legal Counsel.
Absent such moves, the public may face the glaring contradiction of proton and neutron prosecutors where Smith pursues a former president with abandon while Hur is left with investigating with no possibility of an immediate charge.
It is the type of question that Attorney General Merrick Garland should be eager to answer. Indeed, it should have been clarified at the outset with the mandate given to Hur.
Garland, however, has maintained a position as a virtual spectator, disavowing any role in the ongoing investigations. He is neither neutron nor a proton. He is literally without mass.
So the question is whether Hur can get anything other than free drinks in Washington. The answer to that question may prove to be the best punchline of all.