When I first approached Robert Hur for an interview, soon after his appointment as special counsel, fourteen months ago, he demurred, saying, âIâm boring.â Then his circumstances changed. When we finally met, he pulled up in an armored black government S.U.V., accompanied by two U.S. marshals. Hur had completed his report on whether President Joe Biden had mishandled classified documentsâhe had declined to prosecute Biden but had impugned the Presidentâs memory in the processâand members of both parties were furious. âI knew it was going to be unpleasant,â he told me this past week, âbut the level of vitriolâitâs hard to know exactly how intense thatâs going to be until the rotten fruit is being thrown at you.â
Hurâs report stated that his investigation âuncovered evidence that President Biden willfully retained and disclosed classified materials after his vice-presidency when he was a private citizen.â Yet Hur concluded that âthe evidence does not establish guilt beyond a reasonable doubt.â He reasoned that âat trial, 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.â In Hurâs view, âit would be difficult to convince a jury that they should convict himâby then a former president well into his eightiesâof a serious felony that requires a mental state of willfulness.â
The report was designated confidential, but the Attorney General, Merrick Garland, had already promised to make as much as possible of it public. When he did so, on February 8th, Biden immediately held a press conference, which turned chaotic. Reporters yelled over each other, and Biden pushed back on Hurâs characterization of him, saying, âIâm well-meaning and Iâm an elderly man and I know what the hell Iâm doing.â The President was particularly incensed by Hurâs claim that he did not recall what year his son Beau had died: âHow in the hell dare he raise that.â Afterward, the White House continued to fight back, calling the references to the Presidentâs memory âunnecessary, inflammatory, and prejudicial statementsâ that are âunsupported personal opinion criticism on uncharged conduct that is outside the Special Counselâs expertise and remit.â (The Justice Department immediately defended Hurâs report as entirely consistent with legal requirements and Department policies.)
This past week, during a four-hour hearing in Congress, lawmakers from both political parties rebuked Hur. Republicans accused him of going easy on the President by not charging him despite the evidence of criminality; Democrats alleged that, because Hur could not indict the President, he had set out to hurt Biden politically. Hank Johnson, a Democrat from Georgia, claimed that Hur had deliberately played âinto the Republicansâ narrative that the President is unfit for office because he is senile.â
During his time as special counsel, Hur refused to speak to the press, but, shortly after he gave his congressional testimony, we sat down for a conversation, in which we spoke about his approach to prosecution, his commitment to the United States as the son of Korean immigrants, and why he took the special-counsel job. As we delved into how he wrote the reportâand I shared some of my own concerns about his approachâit became clear to me that we were talking across something of a disconnect, between what the public needs from a special counsel and how a well-trained Justice Department prosecutor conceives of the role.
From the beginning, the investigation into President Biden has been double-edged: it was always about both Biden and Donald Trump. In September, 2022, after the F.B.I. found that Trump had taken boxes of classified documents from the White House and stored them at Mar-a-Lago, Biden called Trumpâs conduct âtotally irresponsible.â Two months laterâshortly before the special counsel Jack Smith was appointed to investigate Trumpâs alleged election interference and retention of classified documentsâBidenâs lawyers alerted the government that boxes of materials from the Obama Administration had been found at the Penn Biden Center, a think tank where Biden spent time after his Vice-Presidency. The boxes contained some classified documents, and subsequent searches found more, at Bidenâs Wilmington home and at the University of Delaware. In January, 2023, without informing the President, Garland appointed Robert Hur to investigate Bidenâs retention of classified documents.
According to Justice Department regulations, a special counsel must be a lawyer selected from outside the federal government âwith a reputation for integrity and impartial decisionmakingâ and âappropriate experience.â Hur was an obvious choice. At fifty-one, he had spent a total of fifteen years at the Justice Department, including roles as the top aide to Deputy Attorney General Rod Rosensteinâwhich involved work on Special Counsel Robert Muellerâs investigation of Russian interference in the 2016 electionâand as the U.S. Attorney for the District of Maryland. Hur, a registered Republican, was nominated to the U.S. Attorney role by Trump (and confirmed unanimously by the Senate), but he insists that he does not have a partisan mind-set. âIâm just doing the work,â he told me. âI donât have a particular ideology or crusade that Iâm trying to go after.â When news broke of his appointment as special counsel, many of his friends, Democrats and Republicans alike, were supportive but said it was a little crazy to take such a thankless job. It was guaranteed that âthis part of the country, or that part of the country,â he said, raising his arms to shape the two swaths, would be angry with him.
I asked Hur why he accepted the appointment. He explained that much of it had to do with his familyâs history. His motherâs family fled from North Korea to South Korea shortly before the Korean War. Hurâs parents arrived in the U.S. in the early seventies, and he was born soon after. His father, now retired, was an anesthesiologist, and his mother, who trained as a nurse, managed her husbandâs medical practice. âI know that my parentsâ lives and my life would have been very, very different if it were not for this country and American soldiers in Korea during the Korean War,â Hur said. âThere is a real debt that my family and I have to this country. And in my view, if youâre in a position where the Attorney General of the United States says there is a need for someone to do a particularly unpleasant task, if itâs something that you can do, ethically and consistent with your own moral compass, then you should do it.â
Hur grew up in the Los Angeles area, where he attended Harvard School for Boys (now a coed school called Harvard-Westlake). He recalled that the actor Tori Spelling was at the sister school: âThere were lots of Hollywood people. I felt very much an outsider from all of that because of my strict Korean upbringing.â He explained, âIt was quite stern. Excellence was expected. Fun was severely optional.â He played piano and violin. âI played drums, too, for a while,â he said, âbecause that was my form of rebellion.â
Hur went to Harvard for college, where, he said, he was âregularly floored by how effortlessly classmates of mine could become fluent in things that took me quite a while to get on top of.â He continued, âIâve never been the person whom people look at and say, âThat person is a rare generational brain.â But Iâm going to work harder and grind it out.â He started out studying premed but was âweeded outâ by a course in organic chemistry. He went on to study English, and wrote a thesis that was âan ethical analysis of William Faulknerâs âAbsalom, Absalom!â â Hur traces his interest in literature to his high-school English teachers, who included the journalist Caitlin Flanagan. Flanagan remembers Hur, tooâshe recently chided him on âReal Time with Bill Maher,â saying, âAs I taught Robert and so many students fortunate enough to benefit from my tutelage, when writing, the most important thing in an essay is we keep related ideas together.â She continued, to big laughs from the studio audience, âRobert, the assignment is âShould criminal charges be issued for this thing?,â not âCan you give us an armchair neurological report of the man youâre investigating?â â
Contrary to the stoic persona he displayed at the congressional hearing, Hur is lively and humorous in person. But I couldnât help but connect his self-described fun-optional upbringingâand the unspoken pressures of being the first nonwhite person in this very prominent jobâwith his insistence that his work as a prosecutor is plodding and not creative. âI view it almost like an engineering task or a construction task. I am building a case,â he told me. âThere are planks and nails and hammers. How does this thing get built with the requisite solidity and seaworthiness that it actually will hold up?â His goal, as special counsel, was to call as little attention to his work as he could. He resigned before his congressional testimony, he explained, simply because his predecessors had. âLook, if Mueller did it this way, then there must be some reasons,â Hur said. âI donât want to make history here.â
Hurâs report was refreshingly blunt and direct, but it still led to misunderstandings. The White House and Democrats have managed to spin his conclusion that there was insufficient evidence to convict Biden as something separate from his observations about memory and forgetting. Republicans who wanted Biden to be charged are similarly motivated to see the two issues as distinct, so that they can depict him as both criminal and senile. But the failing-memory issue was not extraneous to the evidence in this criminal matter; indeed, it was integral to Hurâs decision to not recommend indicting Biden. Hur concluded that the evidence is not sufficient to convict Biden in large part because of his memory.
The federal crime for which Biden was being investigated makes it a felony for a person who has âunauthorized possessionâ of a document ârelating to the national defenseâ to âwillfully retainâ it. After Biden left the Vice-Presidency, in 2017, he was no longer authorized to possess classified documents. Hur foundâand Biden has not disputedâthat Biden did possess them, at his home and offices. The only open question in this investigation was whether his retention of the documents was âwillful.â The answer would have been a clear, easy, and resounding ânoâ if Biden was unaware that classified documents were in his home or office, or if he discovered them and promptly reported their presence. The trouble is that Hurâs evidence included an interview recorded in 2017, in which Biden told a ghostwriter, âI just found all the classified stuff downstairs.â Hur also found, on recordings, that Biden read aloud classified information from a notebook to the ghostwriter âon at least three occasions.â
Given these findings, one has to wonder why Hur didnât charge Biden. Based on my reading of Hurâs report and conversations with him, the answer is that Hur believed that Bidenâwho certainly knew that he possessed classified documents in 2017âmay have forgotten about them. The report points to where some documents were found: âin a badly damaged box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket,â and so on. This, the report notes, âdoes not look like a place where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy.â
Then there are Hurâs observations that Bidenâs âmemory was significantly limitedââthat, in interviews with Hur and the ghostwriter, he displayed âlimited precision and recall.â After reading the transcript of Hurâs interview with Biden, many Democrats noted with relief that the President remembered a lot: from the details of a home renovation to a 2011 visit to Mongolia. Reading the transcript, I was at first surprised that his attorneys had let him ramble to that extentâhaving represented clients in interviews with federal prosecutors, I wanted to bury my head in my hands. At one point, Hur even said to Biden, âSir, Iâd loveâI would love, loveâto hear much more about this, but I do have a few more questions to get through.â But I eventually surmised that Bidenâs lawyers had been right to allow him to make the impression of a highly likable man with diverting stories and fuzzily selective recall. My impression, from examining the evidence of his conduct regarding the classified documents, is that Biden came uncomfortably close to being indicted. Hurâs most damning wordsâthat a jury would perceive the President as âa sympathetic, well-meaning, elderly man with a poor memory,â and thus be unlikely to convictâseem to have saved him from that outcome.