[NY Times] ‘My Memory Is Fine,’ a Defiant Biden Declares After Special Counsel Report

I have a major issue with this whole situation. Once prosecution isn't recommended, what happens next? How did the confidential materials actually end up at Pence's and Biden's residences? (By the way, Hur's interview provides some insight into HOW this occurred, but of course, no one seems to care about focusing on that.) And how can we avoid this in the future? That should have been a good congressional probe - to improve processes, handling procedures, or even establish new legal requirements to ensure confidential materials are kept secure (including addressing the problem of over-classification). Instead, we just keep muddling along with the same risks, except now under increased public scrutiny. The mainstream media and Congress utterly failed the American people by not concentrating on this core issue, opting for clickbait coverage instead.

As for the report itself, I have a few problems with it and the DOJ's process.

Once a decision not to prosecute is made, that should be the end of the matter. There's no need to publish anything publicly. A confidential report for Congressional oversight purposes is acceptable, but that's as far as it should go. The DOJ's process seems to involve publishing special prosecution reports but not their own reports on investigations into confidential material mishandling. I understand the extra public scrutiny aspect of a special prosecution, but it ought to be the same process, just with one being more independent from the DOJ main body.

I don't think Hur's assertion of Biden having a "poor memory" aligns with the interview. His judgment there seems off to me. Hur's very specific citation of one example is strange because Biden actually gets the date exactly right, while he was just thinking out loud about the year, which he didn't get to complete because his aides (or lawyers) jumped in with the year. My impression is that Biden's memory is quite normal. He absolutely does recall minute details vividly, like the furniture placement in his home (prompting Hur's "photographic memory" quip). Biden recounts many stories in great detail. But his frequent "I don't know" responses regarding document specifics aren't surprising. From my understanding, memories form most strongly from high attention, emotional impact, or novelty - routine occurrences don't imprint the same way. In the interview, you can tell handling confidential materials was a mandated routine for Biden over his 8 years as VP, and is something he was dependent on his staff to handle, so I'm not at all surprised he lacks detailed recall of those situations.

 

1) You can't. Everything under the moon is classified at some level. Taking home work is normal and forgetting about it might not be given the levels of rigor they want you to return the documents. For context, we have over 100,000 non-NSA contractors in washington with some sort of clearance listening and parsing through our info...

But that's why intent is so important here. If you cooperate fully with "nothing to hide", then it blunts the drive to be prosecuted over it, especially if you're a director level official.

2) I disagree. Not disclosing details runs against the FOIA and because Director-Level officials get a slap on the wrist, we all need to know why to sniff out any chance of impropriety.

Hurr calling Biden "old" as the reason he won't be prosecuted is legitimate even if partisans don't like it. And with the transcripts, we now know why rather than someone from Congressional oversight leaking the details about how senile Joe is.

 

I largely agree with this response and mirrors a lot of what I would respond to.

On point 2 given how much scrutiny and political sensitivity there is good reason for the special counsel and DOJ to release a report. Even if they didn’t they are still likely going to be pressed by Congress to explain their decisions as we saw this week.

 

1)
Don't you think classifying everything is an issue?

The reason classified materials are found in the residences of both VPs is because of how sloppy the paper trail and process are. There is NO defined process on WHO is responsible for what. Worse, there is no system to automatically audit and confirm materials are not left behind. It's an ad-hoc system. The VP (POTUS, other cabinet members) leaves material on their desk expecting it to simply be handled. That process can and should absolutely be buttoned up with clear roles and responsibilities. Contrast and compare that process to Congress members who are allowed to see state secrets - it's in a secure location with no electronic access, and the materials never leave the room. Of course, the President and VP need daily convenient access so that extreme level of lockdown is not necessary, but relying on such an ad-hoc process guarantees confidential materials will repeatedly end up where they should not be.

Intent is certainly important, yet people still get punished for mishandling confidential state materials unintentionally due to sloppiness or carelessness. Proper processes defining roles and responsibilities can largely eliminate such sloppy or careless mishandling stemming from human error. If materials are properly classified - or at minimum, there are clear guidelines separating what truly needs careful handling versus what doesn't - then intent doesn't need to be as heavily weighted.


2)
I fully understand the desire to scrutinize the government for potential impropriety (of not prosecuting). In this particular case, not only is impropriety not occurring, but the important follow-up actions are not happening either. Here we have both the report and interview made public, yet the focus is solely on political theatrics rather than addressing the substantive issues, crowding out any serious examination of how to resolve the real underlying problems. This politicized frenzy tends to happen during election years when materials are publicly released, putting pressure on politicians to posture, media to sensationalize, leaving less oxygen for prudent analysis on correcting process deficiencies.

Furthermore, a non public release does not block FOIA requests or other established oversight processes. Reports can still emerge via FOIA, internal watchdogs and monitors, and congressional oversight - as is already the case with the DOJ-only investigations into Pence's mishandling of classified materials, which have not been made public. If someone objects to that investigation's lack of transparency, they can pursue FOIA, watchdog oversight, and congressional oversight avenues.

The only reason the full interview transcript was released is that the report was released, and Republicans wanted more red meat. It exemplifies the stupid politics and lack of good governance focus I outlined, as the public discourse consistently fails to drill into resolving the core issues I highlighted in point #1.

If we are concerned about hiding impropriety for years, the established process should actually be reversed. An independent counsel is more likely to conduct an unbiased probe compared to the DOJ itself with inherent conflicts. Therefore, the DOJ investigation should arguably face more public release pressure than an independent counsel's work, but the exact opposite is apparaently the process.

 

Yes.

Since FOIA and even more post-Snowden, everything under the sun has been classified to prevent the public from uncovering government ****ups.

But that's really a separate issue from this one.

It doesn't work like that. If everything was under wraps, then the (then vice) president getting a slap on the wrist would look bad.

I guess we now operate under a shittier and lower Trumpian standard, but past admins typically wanted to avoid the whiff of impropriety.

Boohoo, then Biden (and Pence (and that guy with an archives worth of material stored at his shithole) shouldn't have "forgot" to return his books to the super secret classified library then.

Politics will always politics, especially with high profile investigations dealing with the President.

I'd rather have everything readily available for those who do care about "prudent analysis on correcting process deficiencies."

It's a sad day when we want to sic an independent counsel at everything. They cost a shitload of money. They're tasked to find anything to make their efforts look worth it (Ken Starr), and when they don't but don't close the investigation, they look like fools who have been "unduly influenced" (Weiss).

It's not that people think Biden is hiding nucular secrets (though Trump...), it's that people don't want Biden to get away with a law people assume is properly enforced, which can be dubious considering the amount of people coming and going to/from Washington.

 

I absolutely agree that processes need to be done better to deal with classified material. That doesn’t change that in this situation the special counsel came to a legally supported position and was not out to do any political favors to Biden.

As for bringing back an Independent counsel it doesn’t appear there is any appetite for that from either Democrats or Republicans. The excesses of Ken Starr pretty much soured people on that.