A Virtuous Prosecutor?
Was Special Counsel Robert Hur acting virtuously when he declined to prosecute President Joe Biden for unlawfully retaining national security information when Biden left his post as Vice-President?
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Justice in Brief
*It is tax season and the Justice Department reminded us of that this past week. In the Eastern District of Virginia, a man who owned businesses such as an Amazon reseller and a laser tag center failed to pay the employee withholding tax to the IRS. The withholding tax is the money employers deduct from the pay given to employees. He owed almost $2 million to the IRS. In the Southern District of Mississippi, a purported tax preparer filed false tax returns for clients depriving the IRS of more than $3.5 million. These were just two of many tax-related cases the Justice Department highlighted in the last week.
*In the Northern District of California, a ride-share driver was charged under the federal hate crime statute for punching a customer. When arriving at the San Francisco airport to meet the customer, the driver asked if the man was Jewish or Israeli. The driver said he would never transport a Jewish person and punched the customer.
*In the District of Montana, a man entered a guilty plea to charges stemming from his unlawful importation of Kyrgyzstan sheep parts in an effort to create extraordinarily large sheep hybrids in the United States. The man imported the parts and then harvested genetic material that he sent to a lab so the lab could create a cloned Kyrgyzstan sheep. Using sperm from the cloned sheep, the man impregnated a Montana sheep-breed. He did this to sell the extra large sheep to hunting ranges in Texas.
A Virtuous Prosecutor?
Last week Robert Hur appeared before the House Judiciary Committee to answer questions about his decision not to pursue criminal charges against President Joe Biden for Biden’s retention of national security information after his term as Vice President expired. In a report to the Justice Department, Hur asserted his belief that President Biden had violated the law but that Hur did not believe that he could prove the case beyond a reasonable doubt. One reason for this, according to Hur, was that President Biden would come across as “a well-meaning, elderly man” which would garner sympathy from a jury. Not suprisingly, Hur drew criticism from both Republicans and Democrats for his decision. If both sides are unhappy with the outcome, does that mean that Hur acted virtuously? We can find out by applying the virtues identified by the nation’s founders.
Hur’s investigation lasted one year. Prior to assuming his role as special counsel, Hur spent most of his legal career in various positions within the Justice Department. Following law school he clerked in the 9th Circuit Court of Appeals and for Chief Justice William Rehnquist on the Supreme Court. From there he began working as special counsel to Christopher Wray, who, at the time, was the Assistant Attorney General for the Criminal Division during John Ashcroft and Alberto Gonzalez’s tenures as Attorney General. In 2007, Hur moved to the United States Attorney’s Office for the District of Maryland. He left in 2014 for private practice. When Rod Rosenstein left the United States Attorney post to become Deputy Attorney General, President Donald Trump appointed Hur as United States Attorney. Hur remained until the end of President Trump’s presidency in 2021.
Throughout his time investigating the Biden matter, Hur maintained silence. He did not make public pronouncements nor did he hold press conferences. During his testimony before Congress, Hur dutifully answered the questions put to him and did not stray from his key points. Other than his Congressional testimony, Hur’s only other comments arose in the report he was required to file with the Justice Department. Consequently, throughout his tenure as special counsel, Hur maintained the virtue of silence.
Some might point to Hur’s assessment that jurors would find Biden “a sympathetic, well-meaning, elderly man, with a poor memory” as an indication that Hur spoke inappropriately. Yet, this statement must be seen in context. It was an essential aspect of Hur’s analysis that the case against Biden, even when no longer President, is not prosecutable. As Hur mentioned repeatedly, a key element of the crime requires the person act knowingly. Hur says, due to Biden’s lack of memory, he would not be able to prove Biden acted willfully when taking the documents, especially when coupled with the fact that the documents were immediately and voluntarily disclosed to the proper authorities and returned. In this context, even if President Biden and Democrats claimed Hur was not sincere, the statement Hur made demonstrates silence and moderation.
Hur’s investigation also demonstrates frugality. The investigation lasted approximately one year and cost roughly $6.4 million. While this might seem like a significant sum, it pales in comparison to Jack Smith’s investigation into Donald Trump which, thus far, has cost over $23 million. While one can argue that Smith’s investigation is more far-ranging, Hur’s cost is slightly less than what special counsel John Durham spent investigating the Mueller investigation into Donald Trump and Russia’s interference into the 2016 election. Durham spent roughly $6.5 million. Of course, it is significantly more than David Weiss has spent investigation Hunter Biden. At this point, Weiss has spent less than $500,000. This only accounts for his time as specia counsel, however. Most of the investigation occurred while Weiss remained United States Attorney for Delaware. In all instances, most of the expenses paid those involved in the investigation.
Overall, Hur’s report demonstrates industry, humilty, moderation, order, and sincerity. The report covered 345 pages and details the extensive investigation performed. It provides a thorough analysis of the law, the facts, and the historical precedents. He does this in an orderly fashion. Each argument has its proper place. Despite personally believing Biden guilty of the offense, Hur recognized that Biden would have legitimate and credible defenses. His report details them. This shows humility, an understanding that he does not have all the answers and the limits of his investigation.
Hur also demonstrates humility and moderation when he contrasts Biden’s and Trump’s cases. As a Republican and Trump US Attorney appointee, Hur could have used his platform to promote the Republican and Trump causes. he could have condemned the evidence against Trump. He could have asserted that Trump was selectively prosecuted. Instead, Hur highlighted the different allegations, particularly that Biden immediately returned the documents and Trump refused despite numerous requests. Rather than promote himself, Hur jeopardized any future appointment in a second Trump presidency. Overall, Hur prepared and presented a thoroughly balanced report.
Despite this, both sides complained about Hur’s report, each taking the piece they liked. Democrats emphasized the differences between Trump’s case and Biden’s case and capitalized on the bottom line that Biden would not be prosecuted. Republicans took advantage of Hur’s comment about Biden’s memory and the fact Hur believed Biden was guilty. Both sides got something, even if neither deserved it. In this sense, Hur also delivered justice. Hur’s distinctions between Trump’s and Biden’s cases are accurate and his declination was correct on the merits. Hur ensured justice for everyone.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!