Special Prosecutor Robert Hur pulled off a pro-Trump magic trick

In Special Prosecutor Robert Hur’s curious report that President Biden had “willfully retained and disclosed classified materials,” but that there should be no formal charges since he would likely come across to jurors as “a sympathetic, well-meaning, elderly man with a poor memory” and thus “many jurors will want to identify reasonable doubt,” Hur’s explanation of his decision rests on an unseen political sleight of hand that is worthy of Machiavelli himself.

If the president didn’t clearly act willfully or the evidence was otherwise weak, Hur’s conclusion would be correct. But this is not the case; Biden himself readily admits that he brought home and retained classified government records.

Hur, however, knows full well that many defendants, whether accurately or strategically, present sympathetically to jurors, and the prosecutor’s job is to redirect jurors’ focus to whether or not the accused’s conduct fulfills the elements of the crime, thereby generating consistent verdicts based on law, rather than a jumble of outcomes rooted in juror bias or their reactions to defendants’ personalities.

Jurors who “want to identify reasonable doubt” are not assessing the merits of the opposing sides on a level playing field, a problem to be addressed by the prosecution and defense in the pretrial questioning of potential jurors, rather than by the government’s abandonment of charges. It would be anathema to justice if, for example, a prosecutor failed to charge the perpetrators of a racial lynching because some racist potential jurors might be predisposed to finding reasonable doubt.

Indeed, it is the job of the judge, after a hearing, to adjust a convicted defendant’s penalty according to any relevant sympathetic aspects of the defendant. In declining to bring charges for the reasons he offered, Hur has, in effect, usurped the functions of the judge, defense counsel and jury.

In his bogus rationale for not charging the president — whose prosecution could only occur after his term has ended — Special Prosecutor Hur, a registered Republican and former Trump-appointed U.S. Attorney who contributes to many GOP campaigns, gave an invaluable assist to the Trump campaign with the eerie list of dates forgotten by Biden — absent any medical expertise in the measurement of his decline or the stress-based effects of his intensive, protracted interrogation by the FBI.

The question all of this raises is: Why would a prosecutor who has given an inappropriate boost to candidate Trump at the same time allow Biden a pass on the same offense for which his rival will face trial in Florida?

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It is here, in answering the question, that we must wade deep into the cesspool of Washington politics. In a ploy that would impress Bobby Fischer or Gary Kasparov, Hur may well have boosted Trump’s position — and, at the same time, covered his tracks — by not charging President Biden with the retention of top-secret materials.

How does it work?

Prosecutors lack the resources to charge all of the nearly infinite violations of law that they may learn of, and so must pursue only the most egregious crimes and perpetrators. In this sense, Biden’s conduct is in vivid contrast to Trump’s. Biden brought home a small fraction of the boatload of documents that his Republican opponent did, told the truth to investigators and readily provided the files to them, while Trump took pains to conceal the mountain of boxes he’d taken, lied about possessing them and had his home raided by the FBI for the government to get them back.

The magnitude of Trump’s offense — and the subsequent concealment, lies, indifference to law and hostility toward law enforcement — place his conduct light years beyond Biden’s in terms of blameworthiness and future risk, and cries out for prosecution in a manner that the current president’s violation does not. 

But rather than publicly underscoring this telling contrast via simultaneous court proceedings, Hur simply announced Biden’s guilt in his report and, through sleight of hand, substituted a pretextual gut-punch of an explanation — rather than the appropriate grounds for letting Biden off the hook. In this sense, the report is a win-win for Hur and Trump.

Should he ever tire of law, Robert Hur can rest easy. He could always find work as a magician.

Jay Sterling Silver is an emeritus law professor at St. Thomas University.