Former Justice Department officials describe how special counsel Robert Hur put a “thumb on the scale” with comments against Biden

Former FBI general counsel Andrew Weissman: “Unfortunately we’re seeing a redux of what we saw with respect to James Comey at the FBI with respect to Hillary Clinton”

Video file

Citation From the February 8, 2024, edition of MSNBC's Katy Tur Reports

RYAN J. REILLY (NBC NEWS JUSTICE REPORTER): Because those very critical lines are something that really jumped out at me, right. This is something that’s saying it’s not enough to bring charges against him, but really I think handed sort of a hammer to Republicans who want to go after Joe Biden for, you know, being older and a lot of the issues that he’s already facing on the campaign trail going forward.

ALICIA MENENDEZ (ANCHOR): I want to hear Andrew [Weissmann], first from you, then from Neal [Katyal] on the appropriateness of this.

ANDREW WEISSMANN (FORMER FBI GENERAL COUNSEL, MSNBC LEGAL ANALYST): Sure, yeah, so I have very strong views on that based on the model that James Comey set, where somebody there, Hillary Clinton was not being charged. Sounds familiar? This is not being charged, and yet a person goes out and gives their opinion with adjectives and adverbs about what they think.


WEISSMANN: Entirely inappropriate. That is not the role of the Department of Justice. I don't even understand why you would engage in, just as a prosecutorial matter, your memory today is irrelevant. Whether I find you in an interview to have forgotten things — certainly to say what do you remember about certain documents in your house, you know, four or five years ago, I would understand that you might not remember that. To talk about your memory today, irrelevant, it is gratuitous. And it is also exactly what you’re not supposed to do, which is putting your thumb on the scale that could have political repercussions.

Your decision is essentially to, the vernacular in the Department of Justice is, “Put up or shut up.” You either decide to go forward that there is proof here, or you don't say anything at all with respect to your sort of opinions about the case.

If you want to talk about something that would be legitimate, which is what he, President Biden, would have thought at the time that he had these documents in 2017, I think that’s fair game to say, you know, at the time, there's evidence that he either remembered or didn't remember. That time period would make sense. But that is not what this report does. So, I think a really fair criticism of this is, unfortunately we’re seeing a redux of what we saw with respect to James Comey at the FBI with respect to Hillary Clinton, in terms of really not adhering to what I think are the highest ideals of the Department of Justice.

MENENDEZ: Neal, do you share that concern?

NEAL KATYAL (FORMER ACTING U.S. SOLICITOR GENERAL, MSNBC CONTRIBUTOR): I do. So, first of all, I want to defer to your pretty good guest on this, because he puts it with 21 years of prosecutorial experience. But my two tours of the Justice Department tell me that Andrew is stating the general way the department handles things. And indeed, not just the general way. My first tour at the Justice Department, I wrote the special counsel regulations that give this special counsel Robert Hur his power. And at the end of it, we actually said that there shouldn't be a public report in general, that there shouldn’t be a kind of list of adjectives, to use Andrew’s phrase, that would occur.

Now, we certainly had those public reports, even you know, in the intervening times. But I'm not aware of anything quite like this, in which you’ve got a special counsel going after the sitting president for being too old and having a faulty memory. That is, you know, he's come up with a clever way to get those adjectives in there by saying, well, if I brought this case to trial, this is what I would face from a jury.

But as Andrew says, totally gratuitous. I mean, after all, earlier in the report it says Biden had all sorts of innocent explanations for his behavior. So, it just doesn’t feel like that’s doing the work, and it fells like, you know, too clever move by half by the special counsel to try and take some swipes at a sitting president. And it doesn't sit well with me at all. And I do think that, you know, is very much in tension with the Justice Department guidelines on special counsels, and a bit surprised, frankly, that you know, Merrick Garland, the attorney general evidently didn’t, you know, police those regulations at all and let that, you know, let that happen.

I get the need for transparency. I know that, you know, and the report goes out, the Hur report today goes and says Biden’s very different than Trump because Biden ordered full cooperation with the investigation, no indication of executive privilege or anything like that. Trump’s invoking every privilege, you know, left, right, forward, making ones up to try and block having to tell the truth in court. Biden obviously did the reverse, but you know, this particular piece does not sit well with me.