Judicial Notice (02.10.24): No Country For Old Men (Or Women)
Rob Hur clears the 'elderly' Joe Biden, Judge Newman suffers a setback, Biglaw plays the heavy for T-Swift, and other legal news from the week that was.
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The highlight of my week was successfully submitting passport applications for Harlan and Chase. This was no small feat, since I had to contend with an adversarial supervisor at the post office who seemed eager to turn us away. But we prevailed in the end, thanks to a standout performance by Chase—The Best Baby Ever™.
The latest testimonial for Original Jurisdiction comes from one of my favorite legal commentators. According to Arthur Leonard, the Wagner Professor of Labor and Employment Law, Emeritus, at New York Law School, “Original Jurisdiction is a great way to keep up with what is going on in the legal profession.”
Now, on to the news—of which there was an insane amount. Indeed, this was one of the biggest and busiest weeks in the history of Judicial Notice (so I apologize for the length of this missive).
Lawyer of the Week: Robert Hur.
In January 2023, Attorney General Merrick Garland appointed Robert K. Hur as special counsel, tasked with investigating President Joe Biden’s handling of classified documents. To increase public confidence in the objectivity of the investigation, special counsels are often picked from the opposite side of the aisle, and Hur was no exception: a registered Republican and Trump Administration alum, Hur served as a top aide to then-Deputy Attorney General Rod Rosenstein and as U.S. Attorney for Maryland, where his work won praise from the state’s Democratic senators.
On Thursday, Hur issued a 345-page report summarizing the results of his investigation into President Biden. Its bottom line was good news for the president on the legal front: “no criminal charges are warranted in this matter.”
But some of Hur’s reasoning in support of that decision was bad news for Biden on the political front. Hur described Biden as “a sympathetic, well-meaning, elderly man with a poor memory,” as well as “someone for whom many jurors will want to identify reasonable doubt.” As a result, “[i]t 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.”
This widely quoted language is extremely unhelpful to Joe Biden as he gets ready to take on Donald Trump in the 2024 election. As a Babylon Bee headline put it, “Man Ruled Too Senile To Stand Trial Still Fine To Run Country.”
Not surprisingly, Hur received harsh criticism for his report from the left. Former attorney general Eric Holder declared that the report “contains way too many gratuitous remarks” and is “flatly inconsistent with longstanding DOJ traditions.” Jim Messina, former deputy chief of staff in the Obama White House, said that “Hur, a lifelong Republican and creature of D.C., didn’t have a case against Biden—but he knew exactly how his swipes could hurt Biden politically.”
Hur also had his defenders. Former prosecutors told Glenn Thrush of the New York Times that the report “reads like a standard internal department memo drafted to justify a non-prosecution decision.” As Isaac Schorr argued in the New York Post, Hur “didn’t include the anecdotes about Biden’s failing memory in order to execute a political hit job, but to help explain his ultimate [non-prosecution] recommendation.” Highlighting language in Hur’s report stating that Biden conducted himself far better than Trump, Schorr asked, “If Hur was some kind of partisan hack intently focused on bolstering Trump’s campaign and blowing up Biden’s, why did he take pains to favorably compare Biden’s behavior to Trump’s?”
This is just the beginning of Hur’s time in the hot seat. Like other special counsels in high-profile cases, he’ll surely have to testify about his findings before Congress—where Republicans will criticize him for not indicting Biden, and Democrats will criticize him for attacking Biden in his report.
Fun times. As Rod Rosenstein quipped at the time of Hur’s appointment, “Every special counsel starts with a sterling reputation—but no one finishes up that way.”
In memoriam: Professor Dan Burk of UCI Law—a brilliant and impactful scholar and academic,” in the words of Professor Eric Goldman—passed away on February 4. May he rest in peace.
Judge of the Week: Judge Aileen Cannon.