Why was there a special counsel report on Biden’s memory?

President Biden speaks at a podium in front of two microphones. There is an American flag behind him.
President Biden addresses House Democrats at a retreat In Leesburg, Virginia, on Thursday. | Anna Moneymaker/Getty Images

The investigator said Biden presented as a “sympathetic, well-meaning, elderly man with a poor memory” — a political gift to Trump and the GOP.

Both Joe Biden and Donald Trump are old and speak less fluidly than they used to. When speaking, both have a tendency to forget things or mix up names.

But 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.

Special counsel Robert Hur — appointed to investigate why classified documents from the Obama administration were found at Biden’s home and office in 2022 — has concluded his investigation by recommending no criminal charges.

Yet in his report, released Wednesday, Hur made repeated assertions about what he calls Biden’s “faulty memory” and even “diminished faculties.”

He says that when his team interviewed Biden last October, the president repeatedly failed to remember the years in which certain major life events happened — for instance, the years his vice presidency started and ended. “He did not remember, even within several years, when his son Beau died,” the report says.

Biden on Thursday night called an impromptu news conference where he angrily denounced the report and disputed its characterization of his mental acuity. Some Democrats, meanwhile, said Hur’s report seemed designed to hurt Biden politically. (Hur had served as a US attorney under Trump, though it was Biden’s attorney general, Merrick Garland, who appointed him special counsel.) Biden’s attorneys disputed that the president’s “lack of recall of years-old events” was anything unusual, saying the report’s framing of Biden’s memory wasn’t “accurate or appropriate.”

The whole situation was strikingly reminiscent of when the Justice Department wrapped up the investigation of Hillary Clinton’s emails without charges — but with then-FBI Director James Comey’s public criticism of Clinton as “extremely careless” in her handling of classified information.

This time around, Republicans have long been trying to push a narrative that Biden is downright senile — that his mental functioning is much worse than we know, that he’s certainly much worse than Trump, and that the White House has been trying desperately to cover this up.

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.

Biden’s memory vs. Trump’s memory

Hur’s report repeatedly mentions Biden’s memory — saying that in their interview, he presented as a “sympathetic, well-meaning, elderly man with a poor memory,” that he demonstrated “diminished faculties and a faulty memory,” and that he had “limited precision and recall.”

Of course, investigators quizzing targets about years-old details frequently get the response of, “I don’t recall” (genuine or not). But Hur makes this into a bigger deal by implying that Biden was forgetting really big things.

The stated justification for mentioning all this is to justify Hur’s decision not to charge Biden for unlawfully retaining classified information — a jury, Hur claims, would likely find him sympathetic and not convict him.

The report cites four examples, three of which are about naming specific years in which things happened. Biden got mixed up about which year his vice presidency ended, which year it began, and which year Beau died.

The fourth example is that Biden purportedly claimed that during the 2009 Afghanistan troop surge debate, he was at odds with one official, but they were actually in agreement. Hur claims this last one is a big deal because that debate “was once so important to Biden” — but by the time of their interview, it had occurred 14 years ago. The full context of this is difficult to judge without the entire transcript of Biden’s interview being released.

Clearly, Biden is not very good at naming in which year things happened. That may be embarrassing, but is it disqualifying for the presidency? To assess that, we’d have to compare him to his opponent. 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, according to Forbes’s Sara Dorn.
  • 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.

Is there any evidence that Biden’s age is affecting his governance?

One reason the Hur report struck fear into the hearts of some Democrats is that many privately wonder if Biden really has been hit harder by his age than the White House is admitting.

And one reason they’re wondering this is that the White House has tightly controlled Biden’s availability for public questioning.

Biden gave fewer interviews and press conferences in his first two years than any president in decades. He has now declined the traditional pre-Super Bowl interview two years in a row.

Still, there’s no concrete evidence that Biden’s governing ability has been impacted. Biden aides tell reporters he remains engaged and active behind the scenes, as we might expect. More interestingly, a report from Politico claimed that former GOP speaker Kevin McCarthy told his allies that he found Biden “sharp and substantive” in private conversations.

One structural problem for the White House is that when Biden does an interview and it goes just fine, it gets little attention. But if there is any verbal flub or mix-up, it goes viral as purported proof of Biden’s decline. So each public appearance is a risk.

That was shown at Biden’s press conference, which went generally well. Though his answers were overall cogent and substantive, he did misspeak and say that “Sisi” — Egyptian president Abdel Fattah el-Sisi — was the president of Mexico.

Both of our presidential nominees-in-waiting are inexact speakers of advanced age who get mixed up on the facts. They’re also the nominees-in-waiting we have — and there’s no clear path to replacing either of them.

Update: February 8, 8:40 pm ET: This post was originally published earlier Thursday evening. It has been updated after Biden’s press conference.

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