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Justice Department

Biden attacked Hur for asking him when Beau died. That didn't happen, sources say.

The president raised his son’s death after being asked about his workflow at a Virginia rental home, where he said he found classified materials, two sources said.
President Joe Biden responds to a question
President Joe Biden answers questions last week after the release of the special counsel's report into his handling of classified documents.Tom Brenner / The Washington Post via Getty Images

President Joe Biden lashed out at Robert Hur last week over one particular line in the special counsel's report on his handling of classified documents: that Biden "did not remember, even within several years, when his son Beau died."

“How in the hell dare he raise that?” Biden told reporters in an impromptu White House press conference. “Frankly, when I was asked the question, I thought to myself, it wasn’t any of their damn business.”

But Hur never asked that question, according to two people familiar with Hur’s five-hour interview with the president over two days last October. It was the president, not Hur or his team, who first introduced Beau Biden’s death, they said.

Biden raised his son’s death after being asked about his workflow at a Virginia rental home from 2016 to 2018, the sources said, when a ghost writer was helping him write a memoir about losing Beau to brain cancer in 2015. Investigators had a 2017 recording showing that Biden had told the ghost writer he had found “classified stuff” in that home, the report says.

Biden began trying to recall that period by discussing what else was happening in his life, and it was at that point in the interview that he appeared confused about when Beau died, the sources said. Biden got the date — May 30 — correct, but not the year.

Hur's 345-page report absolved Biden of criminal wrongdoing while pointing to evidence that he took home and kept highly classified material. Even though Biden was found to have disclosed classified information to the ghost writer on three occasions, prosecutors concluded that they could not prove that the president knew it was classified information at the time.

Fiery criticism of the report from Biden supporters, though, has focused on Hur’s characterizations of  the president’s memory. They say the report was filled with gratuitous details about Biden’s memory issues, including that the president misremembered the year Beau died. They have also seized on Biden’s statement that the special counsel asked him about the date of Beau’s death.

“Why in the hell are you asking that question?” former Attorney General Eric Holder, a Democrat, said Monday on MSNBC, suggesting that Hur was "a rube, perhaps," who had "shaded" what he put in the report. “What does that have to do with the retention of classified documents?”

First lady Jill Biden questioned in a fundraising letter whether Hur was using “our son’s death to score political points.”

Sources familiar with Biden's view of the interview say Hur induced the president to bring up his son by asking a series of personal questions related to Beau. They included questions about Biden's memoir, “Promise Me, Dad,” in which he writes about his son’s battle with cancer and death in 2015. Hur also asked about Biden’s work for the Biden Cancer Initiative, founded in Beau’s memory.

These sources did not dispute that it was Biden, not Hur, who first mentioned a date for Beau’s death. But they said Biden felt betrayed by the comments in Hur's report about his memory and mental state. During the interview, Hur asked him to recall events years in the past as best he could, and Biden agreed to speak freely and expansively, rather than in the clipped and careful manner of a typical witness.

Exactly what Biden said about his son’s death and other issues may ultimately become public. The two-day interview was audio-recorded and transcribed, and congressional committees are expected to push for its release.

The Justice Department, the special counsel’s office and the White House declined to comment for this article.  

Two people who know Hur well said that he had set out to write a balanced and thorough narrative that would explain why, despite significant evidence, he had concluded that no criminal charges would be warranted for Biden. Over the course of a yearlong investigation, Hur's team examined 7 million documents and spoke with 147 witnesses, according to his report.  

Associates of Hur say that Biden's claim that the special counsel quizzed the president, unprompted, about his son’s death from cancer is an effort to take the focus off the special counsel's findings regarding how Biden handled classified documents and his struggle to recall certain facts.

The line of questioning about the memoir was directly relevant to the central issue of the investigation, the people familiar with the interview said. Hur’s team had learned that Biden was recorded in 2017 telling the ghost writer that he “found all the classified stuff downstairs,” at the Virginia rental home where the two were working on the book.

In the interview, Biden told Hur that he didn’t remember saying in 2017 that he had found classified documents in the home.

Hur’s investigation determined that the documents Biden mentioned in 2017 were never turned over to the FBI and, in fact, were likely the same ones found in Biden’s Delaware garage in 2022.

Biden’s struggle to recall the period when he worked with the ghost writer were among several exchanges during the two-day interview where he appeared to forget important facts, according to the report. Hur's report also states that Biden’s memory appeared to be significantly limited in the 30 hours of recorded interviews he conducted with the ghost writer in 2017.

Hur stated that those memory lapses were one reason he concluded that it would be difficult to convince a jury to convict Biden of intentionally mishandling classified information.

But Hur has come under criticism for his descriptions of what he viewed as Biden’s “diminished facilities.” Holder said on X that there were too many "gratuitous remarks" in Hur's report that were "flatly inconsistent with long standing DOJ traditions.”

Attorney General Merrick Garland has also been criticized by Democrats for releasing the full, unredacted version of the report. Special counsel rules require them to write confidential reports to the attorney general detailing and explaining their decisions on whether to file criminal charges in a case.

In an effort at transparency, Garland has pledged to make all special counsel reports public, consistent with the Justice Department track record of releasing most special counsel reports since the office came into being in 1999.

William Barr, who was attorney general in the Trump administration, was harshly criticized for initially releasing his own two-page summary of special counsel Robert Mueller's Trump-Russia report in 2018. Several weeks later, Barr released the full document.

People familiar with the matter say Garland first saw Hur's report Feb. 5, three days before its release. Had the attorney general ordered any changes, he would have had to disclose those to Congress, as required by the special counsel regulations.  

In a letter to Congress when he released the report, Garland said that he took no action to block any investigative steps by Hur, because nothing the special counsel did was “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”

Asked whether Garland has confidence in Biden’s fitness for office, a DOJ spokeswoman replied, “Of course.”

It was Garland who selected Hur, a longtime Republican and former federal prosecutor, as Biden special counsel. After graduating from Harvard University and Stanford Law School, Hur held multiple positions in the Justice Department, including serving as counsel to Christopher Wray, now the director of the FBI, when Wray was in charge of the department’s criminal division. 

During the Trump administration, Hur was a top adviser to then-Deputy Attorney General Rod Rosenstein, who was overseeing Mueller’s Trump-Russia investigation. Rosenstein said Hur is neither an ardent Trump supporter nor a partisan activist

“Rob plays it straight,” Rosenstein said in an interview. “I think he wrote in that report what he believed to be the relevant facts in play as to whether or not to bring criminal charges.”

From 2018 to 2021, Hur served as the U.S. attorney for Maryland, and won plaudits from the state's Democratic senators, Ben Cardin and Chris Van Hollen, who praised his “excellent service” and said he "faithfully followed the facts and the law.”

According to federal campaign filings, Hur has donated to at least three Republican political campaigns, including $500 to former U.S. Attorney Christina Nolan, a Republican, in January 2022, when she was in the GOP Senate primary in Vermont, which she later lost.

Public records show Hur also donated $200 to Maryland GOP Gov. Larry Hogan in 2017 and $201 to GOP Sen. John McCain of Arizona during his presidential campaign in 2008. All three of those politicians are by today’s standards moderate Republicans, and none were ardent Trump supporters.

NBC News legal contributor Chuck Rosenberg says it’s fair to question some of the language Hur used about Biden's memory in his report, but not his decision to explore and explain Biden’s memory issues.

“If Hur was going to tell the attorney general that he declined to prosecute President Biden, then I believe he was also obligated to explain his rationale,” Rosenberg wrote for the website Lawfare

"Would Biden come across as forgetful? As sympathetic? As willful? As dissembling? As honest? These are crucial determinations prosecutors make all the time about witnesses and defendants," he added. "Indeed, I cannot imagine writing a report to the attorney general and not including these assessments.”

People who know Hur say he did not anticipate how his descriptions of the president’s memory would resonate across the political landscape. They say he believed that when his report was released, he would likely come under immediate attack from Republicans who would accuse him of going soft on Biden.

Instead, one line in Hur's 345-page report will likely live on in American presidential and political history: the special counsel's assessment that Biden would come across to jurors as a “sympathetic, well-meaning, elderly man with a poor memory.”