WASHINGTON — The White House clashed with the Justice Department in the run-up to the release of a special counsel report last week about President Joe Biden’s handling of classified information, previously undisclosed correspondence shows.
The letters, obtained by The New York Times, show that a top Justice Department official rejected complaints from Biden’s lawyers about disparaging comments in the report regarding the president.
The lawyers wrote to Attorney General Merrick Garland the day before he released the report by the special counsel, Robert Hur. They raised objections to passages in the report in which Hur suggested that Biden’s memory was failing and questioned some of his actions, even though the special counsel had found no basis to prosecute the president.
The lawyers said Hur’s comments “openly, obviously and blatantly violate department policy and practice,” the letters show.
The next day, as the department was preparing to make the report public, Bradley Weinsheimer — the department’s senior career official, or nonpolitical appointee, who deals with ethics complaints or appeals of department decisions — wrote back rejecting their criticism. He insisted that the comments in the report “fall well within the department’s standards for public release.”
Hur had permitted Biden’s White House and personal lawyers to review a copy of the report before turning it in to Garland, to allow for any comments and to see whether there was anything Biden might want to assert executive privilege over. Although Biden did not invoke the privilege, the review prompted the lawyers’ complaints to Garland.
The disclosure of the sharp exchange adds new detail to how the White House sought to head off what officials knew would be a political furor set off by the release of Hur’s report — and how the Justice Department declined to change course.
Among other things, the letters show that the White House and Justice Department sparred over whether the report was comparable to a 2016 news conference in which James Comey, the then-FBI director, rebuked the Democratic presidential nominee that year, Hillary Clinton, over her use of a private email server, even as he announced that he was recommending against prosecuting her.
They also underscored long-simmering tensions between the White House and the Justice Department over decisions made by Garland, even as the Biden administration has sought to restore the norm of Justice Department investigative independence from White House influence after the Trump administration.
In registering their objections, Biden’s lawyers stopped short of asking Garland to withhold anything from the report or to instruct Hur to rewrite it.
Hur is scheduled to testify publicly March 12 in front of the House Judiciary Committee, according to a person familiar with the matter. Republicans have seized on Hur’s characterization of Biden as unable to remember important dates from his own life to bolster their assertions that he is too old to serve another term.
The White House and the Justice Department declined to comment on the letters.
Garland said last year that he would make the eventual report public when he named Hur, a former Trump administration political appointee, as a special counsel to investigate how classified documents from Biden’s vice presidency had ended up at an office he had used in Washington and his home in Delaware.
Hur’s nearly 400-page report concluded that there was no case to bring against Biden. Although it said there was some evidence consistent with a conclusion that Biden had willfully retained classified material without authorization while out of office, it said the facts fell short of proving that he had done so — and that other evidence was consistent with innocent explanations.
But Hur also used his report to denigrate Biden as “totally irresponsible” for keeping at his home diaries from his vice presidency that contained classified information, including accounts of meetings at which national security or foreign policy matters had been discussed. Hur made that assertion even as he acknowledged that other former presidents, including Ronald Reagan, did the same and that the Justice Department has known about that practice without objecting to it.
And — particularly explosive amid Biden’s reelection campaign — Hur repeatedly portrayed the president as doddering, including calling him an “elderly man with a poor memory” who has “diminished faculties in advanced age.”
Biden’s lawyers, who were present for Hur’s five-hour interview with Biden, have called those and similar comments in the report both inaccurate and gratuitous, noting that Hur found he could not prove a case against Biden anyway for other reasons.
Hur obtained a recording of Biden telling a ghostwriter, while living in a rented house in Virginia in 2017, that he had just found “all the classified stuff downstairs.” The special counsel tried to prove that Biden had been referring to a specific set of files about the Afghanistan War that were found with a jumble of unrelated material in cardboard box in his garage at his house in Delaware. If so, the recording would be strong evidence that Biden had knowingly retained those files while out of office.
But Hur could not find evidence to prove that theory. At one point in discussing why he had declined to bring a charge based on that theory, he provided a reason to say Biden has memory problems: He speculated that Biden “could have come across them” in his Virginia house but then “forgotten about them soon after,” which he said could convince jurors that he did not hold onto them willfully.
But elsewhere, Hur made clear that he lacked sufficient evidence to bring a criminal charge based on that theory, regardless of Biden’s memory. He could not prove the Afghanistan War files had even been in the Virginia house, and he was unable to determine who had put them in the box. He acknowledged the available facts were also consistent with a scenario in which “they could have been stored, by mistake and without his knowledge, at his Delaware home since the time he was vice president.”
Biden said that on that recording, he had actually been talking about having found something else — a sensitive but unclassified memo he had written to then-President Barack Obama in 2009 about the war — and that he believed the documents must have been tossed into the box by people moving his belongings out of the vice president’s residence.