The furor is a result of the report’s repeated references to the president’s memory lapses, embellished by Mr. Hur’s conclusion that a reason to eschew prosecution was “it would be difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.” Less than a week after NBC News released a poll showing 62 percent of voters worry about the 81-year-old Mr. Biden’s mental and physical fitness for a second term, this was political dynamite. It was so explosive, in fact, that Mr. Biden felt he needed to hold a news conference to rebut it, during which he angrily protested: “I know what the hell I’m doing.” That did not stop Democrats from privately fretting and Republicans from milking the moment for all it is worth; some in the GOP have even called for administration officials to invoke the 25th Amendment’s provisions for presidential disability.
Yet there is nothing new about Mr. Biden’s memory lapses, malapropisms and rambling, sometimes embroidered anecdotes. This has been an aspect of his political persona since he was a much younger man. And it has plainly not improved with age. “My memory is fine,” the president said at Thursday’s news conference — before proceeding to confuse the presidents of Mexico and Egypt. Those condemning Mr. Hur for his “gratuitous” discussion of Mr. Biden’s forgetfulness — the word used by the president’s legal team — are themselves forgetting that the special counsel mentioned them as part of his explanation, required by regulations, of why he thought the charges could not be proved to a jury beyond a reasonable doubt. Still, critics are right that Mr. Hur did not need to lay it on quite so thick.
Among other reasons that was unfortunate is that it detracted from a part of the report that presented Mr. Biden in a favorable light — especially in contrast to his likely November opponent, former president Donald Trump. Mr. Trump took classified documents home with him from the White House and is being prosecuted for related offenses by another special counsel, Jack Smith. Contrary to Republican allegations of a two-tier justice system, Mr. Hur noted “several material distinctions” between the two cases. The former president refused multiple chances to return classified documents and allegedly enlisted others to destroy evidence and to lie about it before the FBI obtained a warrant to search his Mar-a-Lago estate. Mr. Biden turned over classified material and consented to FBI searches of his home and other locations.
To be sure, Mr. Hur called Mr. Biden’s sloppy storage of classified materials “totally irresponsible,” the same words Mr. Biden used to describe Mr. Trump’s handling of what were supposed to be secret papers. Taken as a whole, however, the Hur report’s implied contrast between Mr. Biden and Mr. Trump favors the former.
Voter concerns about Mr. Biden’s age and mental acuity are not only widespread but also perfectly legitimate. Assuming that Democrats do not want to deny him their nomination at this late date, those concerns will keep dogging his candidacy. And they would even if Mr. Hur had worded his report much differently. It’s up to the president to convince the people that he is still up to the job, or at least more up to it than Mr. Trump. It’s also up to everyone else to consider Mr. Biden’s flaws, not in the abstract, but relative to those of his opponent. The Hur report did not change that basic reality, either.
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