Below is my column in the Messenger on the ongoing (but still largely unknown) efforts of Special Counsel Robert Hur. In fairness, Hur could be doing what Jack Smith and his predecessors failed to do: run a leakless investigation. However, for the roughly half of Americans who view the Trump impeachment as “politically motivated,” the lack of any indication of an equally aggressive investigation is concerning. People should not view this as a competition between “our” and “their” special counsels. However, the public wants to see a balance of effort. Those citizens are asking if you have seen this man because they want their special counsel back.
Here is the column:
With the arraignment of Donald Trump in Miami, Department of Justice (DOJ) special counsel Jack Smith is pushing forward with a historic criminal prosecution that could result in a terminal prison sentence for the 76-year-old former president and, at least for now, the leading Republican candidate in the 2024 election.
This also is the six-month anniversary of the appointment of another special counsel … Robert Hur. In the company of better-known appointees like Robert Mueller, John Durham and Smith, Hur is the prosecutorial version of the missing Beatle. He was appointed on Jan. 12 and then seemingly vanished.
Unlike the apparent leaks and speculation about the Smith investigation or the breathless accounts of Trump grand jury testimony, Hur’s investigation of classified documents allegedly found to be improperly in Biden’s possession appears to have all but disappeared.
The lack of leaks is, in one sense, a good thing; prosecutors should do their work without public comment. Moreover, Hur is well short of the multiyear investigations of special counsels Robert Mueller or John Durham. However, even with the Durham investigation, there still were indicators of action, from subpoenas confirmed by recipients to grand jury appearances.
Hur is clearly going to face heightened comparative scrutiny. The concern in many minds is that, once again, there may be a stark difference in how the Justice Department pursues Trump versus his opponents.
With then-Secretary of State Hillary Clinton and her possession of classified documents on private email servers, the Justice Department was so accommodating that it seemed to send requests in gift baskets rather than as subpoenas. As State Department investigators worked to determine the potential compromising of classified information, she and some members of her staff did not fully cooperate initially and refused to turn over her emails and other evidence; Clinton declined to speak to the State Department’s inspector general. Ultimately, the FBI cut deals with her close aides to secure their cooperation. Later, additional classified material was found on the laptop of former Rep. Anthony Weiner (D-N.Y.), who was married to top Clinton aide Huma Abedin — 49,000 emails, potentially relevant to the Clinton investigation.
A majority of the public at the time believed Clinton should have been charged in that case, and nearly half of Americans have come to view the FBI as politically compromised or untrustworthy.
Hur may answer all of these questions eventually, but he will be asked not simply whether there will be charges against President Biden but how he investigated the allegations.
With Trump, the FBI followed the familiar no-holds-barred approach to pursuing him, including a raid on his home at Mar-a-Lago.
To be clear, there are significant differences between the Trump and Biden cases. The Trump indictment details alleged efforts to conceal documents, obstruct the investigation and lie to the government. For two years, I have written that Mar-a-Lago was the greatest threat to Trump, and it has proven to be precisely that.
We obviously do not have an indictment on Biden and, thus, do not know the full extent of any evidence in that controversy. Yet when the Trump documents were found, Biden famously declared his revulsion with anyone possessing classified material. As he responded to a question from CBS’s Scott Pelley: “How that could possibly happen, how one, anyone, could be that irresponsible.”
Hur is now, presumably, trying to answer that question with regard to Biden himself. However, what is clear is that what President Biden has said publicly on the matter makes no sense.
Classified documents have been discovered in Biden’s possession at several locations, hundreds of miles apart, ranging from a prior office in Washington, D.C., to his home and his garage in Delaware. We also have learned that Biden may have removed documents from a SCIF while he was a senator and kept those documents.
Biden has publicly declared that he has “no regrets” and assured Americans that the special counsel investigation would soon peter out when it determined that “there is no ‘there’ there.”
Yet, his claim that these documents were inadvertently removed from the Senate and the White House strain credulity. You do not just inadvertently remove classified documents from a SCIF and then retain them for almost two decades.
Moreover, the documents from the period of the Obama administration were not just removed but were then divided and repeatedly moved to different locations. One document reportedly ended up in Biden’s personal library. The movement and division of the documents suggest purpose and knowledge.
That brings us back to special counsel Hur. Given a suspect who is offering an implausible explanation for potentially criminal conduct, most prosecutors would want to secure a statement on the record. Lying to investigators is itself a federal crime — removing any questions over statutes of limitation.
In the case of Trump national security adviser Michael Flynn, then-FBI Director James Comey later bragged that he “probably wouldn’t have … gotten away with it” in other administrations but that he sent “a couple guys over” to White House offices to question Flynn. Comey broke protocols and sent the agents, who were able to get a statement that was later used to prosecute Flynn for misleading the FBI.
The question today is whether Hur has asked to speak to Biden or asked for a statement from Biden. The best time for such a demand was six months ago, before Biden might learn of countervailing evidence.
Biden has repeatedly insisted that he would fully cooperate with the investigation. That would seem like an invitation for an interview or a written statement back in January. If Biden has refused such a statement, it would appear that he is following a Clintonesque view of cooperation. But that, of course, depends on whether Hur actually asked for an interview or statement.
Smith used a flurry of subpoenas to pursue Trump over his documents. Smith was all over the place in pressuring Trump World figures, from low-level aides to Trump’s own lawyers — even compelling Trump counsel to testify against their client.
After six months, it may be a tad early to put Robert Hur’s face on milk cartons with a “Have you seen this man…” plea. However, after six months, it would be reassuring to see some proof of life in the investigation of President Biden’s classified documents.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.