On The New Abnormal, Matt Gertz and Andy Levy discuss Robert Hur's report and poor political journalism

Matt Gertz discusses Robert Hur's report

Audio file

Citation From the February 13, 2024, edition of The New Abnormal

ANDY LEVY (HOST): At the end of last week, special counsel Robert Hur issued his report on President Joe Biden's handling of classified documents. And while Hur said there would be no criminal charges, it was his comments about Biden's mental acuity that have caused a stir. Here to discuss is Media Matters senior fellow Matt Gertz. Matt, thanks so much for being here.

MATT GERTZ (MEDIA MATTERS): Good to be back.

LEVY: So it seems to me there are sort of two parts to this story. There's Hur's own actions — in other words, what he wrote — and then the response by the media. I want to mainly talk about the second with you, but I think we have to at least touch on the first, well, first. So Hur basically said that there would be no way to convict Biden of a crime here because, quote, "at trial, Mr. Biden would likely present himself to a jury as he did during our interview of him as a sympathetic, well-meaning, elderly man with a poor memory." In a piece for Media Matters, you called this facially absurd. Why did you say that?

GERTZ: Yeah. I think it's not credible to think that the sitting president of the United States would argue in court that he shouldn't be convicted of a crime because he's a senile old man. That is not what would happen. I think it's just sort of on-its-face ridiculous to think that it would, but more to the point, I mean, this was sort of a sideswipe that Hur threw out there after declaring that the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt, and so no criminal charges are warranted in this matter.

You know, he could have just stopped there, but kind of decided to throw in a partisan attack that just kind of happened to blend in with what Republicans have been using to try to take Biden down for the last six years. And then from there, the media kind of seized it and we're off to the races.

LEVY: Yeah. And as you and others have pointed out, Hur's descriptions are unfalsifiable. Explain what this means.

GERTZ: Joe Biden is not a young man. Right? He is 81 years old. He has a long career of public service, but that is also colored historically by, you know, the fact that he is a self-described gaffe machine.

LEVY: Right.

GERTZ: Someone who says a lot of stuff, has a lot of verbal miscues. He has a well-documented stutter. And so it's impossible, I think, to tell whether any of those particular miscues are the result of some sort of early onset dementia or something like that.

You have to kind of accept the president's doctor's conclusion. After reviewing him through, like, actual medicine, rather than just watching little clips on TV, he says that Joe Biden can do the job as president.

You can listen to people like Kevin McCarthy, who have negotiated with Joe Biden and said that he's sharp, in addition to Democrats and cabinet officers.

There's not really a way to falsify this. It's just something that the media can seize on and chew over and talk about at length, and kind of hammer in the idea that any of the president's verbal miscues are because of his age.

LEVY: Before I get to the blatant media response to all of this, I want to talk about something that I sort of saw and that I think you also noted in your piece that when legal commenters have been asked about this report, almost to a person, with the inevitable Jonathan Turleys aside, they are saying that what Hur did here wildly overstepped his boundaries, they use phrases like cross the line, totally inappropriate. That seems to be the norm for the legal commentators, at least.

GERTZ: Yeah. That's right. That includes not only people like Andrew Weissmann and Neil Katyal, who are lawyers from the Obama DOJ era, and who have been typically outspoken on issues like this, but also someone like Ty Cobb, who — I was watching CNN after the report came out, and he was on saying, look. I served on an independent council probe back in the '80s where we actually did decline to prosecute someone because of health issues, but you don't you're not supposed to, like, say that. That's not the appropriate role of the Justice Department do.

And so Hur does seem to have acted inappropriately, exceeded his authority. I think it's not a coincidence that Hur is someone who served as a clerk to two right-wing judges, who served in the Bush DOJ, in the Trump DOJ, and then was appointed as a U.S. attorney.

You know, this is something that Democrats love to do – they love to try to demonstrate how ethical they are by picking someone from the other party when they have to pick someone to go after a Democrat. You know, you saw something similar with the Hunter Biden probe, which is being conducted by a Trump administration holdover.

In this case, Attorney General Merrick Garland probably thought that this would quell any complaints of political bias, that this would put this investigation, make it clear that it was above board.

This is a function of Democrats trying to respond to the constant Republican claims that DOJ decisions that go against their political interests are biased, but it doesn't really seem to work. What ends up happening is you have Republican and Democratic administrations both deciding to appoint Republicans to investigate both Democratic — and both Republicans and Democrats. And that just creates a scenario that is really ripe for someone like Hur to just kind of throw in a political charge.

LEVY: Yeah. Absolutely. And it's a separate topic, but I am absolutely sick of the way they do business and that they haven't learned by now that it's a fool's game to begin with because no matter who they appoint, if that person rules against a Republican, it's not gonna stop MAGA folks from arguing that, you know, it was rigged against them regardless of the pedigree of that person. So I don't even know why they bother, but that's a whole separate subject.

GERTZ: I see it as kind of an extension of the same sort of ref-working that we've seen Republicans and right-wing media use against the mainstream press for generations.

LEVY: Yes, absolutely.

GERTZ: They've just picked up that strategy and plopped it over, into the criminal justice framework, and in doing so, have really shifted all of the incentives and all of the reactions that you see appointees making in these cases.

You saw it back in 2015 when James Comey came out and gave his big speech about how Hillary Clinton had been irresponsible, but, oh, by the way, we're not gonna charge her with anything because there's not enough evidence of crimes to actually do anything. This is a similar sort of scenario.

LEVY: Oh, 100%. Could not agree with you more. It is the exact same playbook. And why not? It worked with the media. Why not do it with the Justice Department?

So let's talk about the media's response to all this and how they framed all these stories, because it ain't been great. I wanna read some of the headlines, which thankfully you were kind enough to compile in your piece, which saved me some work. I'll just read some of them.


It goes on and on, and it was all the same thing. What to you is the big problem here?

GERTZ: I think the big problem is that it is a case of not whether something is worth giving any coverage whatsoever, but the amount of coverage that is provided is just wildly out of step.

This is a case where one guy, a Republican appointee, has made a critique of the president. And rather than viewing it through that lens and trying to compare it to what others have said about Biden, you have them really just kind of channeling it and using it to really rain down a ton of negative coverage in that vein. You know, I mean, those headlines were all from the first 24 hours.

Judd Legum over at Popular Information did a great study. He looked at four days of coverage and found 33 stories from The Washington Post, 30 from The New York Times, and 18 from the Wall Street Journal just on Biden's mental fitness just over those four days. That is a deluge.

Part of it, I think, is that journalists feel like this is an opportunity to show that they're fair by giving some negative coverage of Biden to balance out their coverage of Donald Trump. Donald Trump, of course, unhinged authoritarian facing tons and tons of criminal charges right now, including for trying to subvert the election, but you gotta be fair. You gotta give both of them some negative coverage.

And this is also a case where you don't need to do any actual research on, like, policy nuance or anything like that. You can just do hot takes. Everyone sort of has a view of the president that they can just kind of dial up and and put out there without needing to do a lot of work.

And so you have the situation where, of course the president's regular critics seize on it, but also people who are generally either inclined to support Biden or inclined to at least not like Trump very much in the case of a lot of these op-ed pages are all going in the same direction. And that just has much more impact.

We also end up with cases where journalists — and this drives me more nuts than I think the rest of it — come out and say like, well, yes. There are also critiques of Donald Trump having some of the same problems, but for some reason, one of these becoming a major story and the other one is not. And it's because journalists are making one of them a major story and one of them not.

This is not rocket science. Journalists play a role in determining what are the stories that the public is concerned about and talks about. And if you do 30 stories in four days about the president's age and then turn around and do stories about how the public is very concerned about the president's age, like, we're all trying to find the guy who did this.

LEVY: Yeah. Exactly. It's like, at some point, realize that at least some of the time, you are the horse, not the cart. That is the framing that drives me crazy too, and The New York Times does this a lot.

It's the constant, well, this is what people are worried about. And it's like, well, yeah, they're worried about this because, a) well, there's first of all, there's Fox News and the whole conservative ecosystem driving some of it. But then, b) because you're pushing it.

And so Trump's gaffes of which there are, I would say at least an equal amount to Biden's, if not more, they rarely seem to get the same level of media attention, and I think a lot of this goes back to what you said earlier, and it's that the media engages with the right-wing framing of a lot of issues.

GERTZ: Yeah. I mean, I think part of it is that the right is just much more disciplined at establishing these frames than the left is. I mean, the right has spent a ton of time and resources dating back to 2019, basically making the case that anytime Biden, a self-described gaffe machine, makes a verbal miscue, the reason is because he's old.

You have all of these Republican operatives who take these out-of-context snippets and circulate them on social media, and then others on the right-wing media and Fox News pick them up and talk about them. And, you know, the impression is Joe Biden is a mentally failing dementia patient. That's the case that they want to make. Whereas when Donald Trump says something, you know, there are a lot of different ways you can take it.

So one example would be when Donald Trump gets on stage and he says, like, where is Nikki Haley's husband? What's that about? Where's he gone? One way you could interpret that is, well, ooh, Donald Trump, he's forgotten that her husband is in the National Guard and on an deployment to the horn of Africa. Maybe he's got some memory issues happening because he's old. Like, that's one way you can interpret it.

Another way is well, I mean, is Trump doing that because he's like a huge piece of shit and he's just being an asshole for no reason like he normally is? I mean, that's another way to interpret the same comment.

Conservatives are more disciplined about putting everything into the same bucket where I think liberals have a problem in that they need to figure out, OK, is Trump saying this thing because of his age or because he's a big jerk or because he's a liar or because he's kind of crazy? And those stories get scattered, when they sort of make it into the broader public and because of that are just less acute, I think.

LEVY: Yeah. Absolutely. I agree. And then the other thing with Trump is people say, oh, he was joking. He was joking. That's the other big thing I hear is that, you know, he'll say something that is just wildly wrong or untrue and it'll be defended as a joke. But you end up with people like Mara Liasson on NPR saying Trump's misstatements for some reason have not risen to the level of Biden's. What do you mean, for some reason? Like, we don't know what the reasons are. There's no way to, you know, it's like she's saying, well, there's really no way to know why this is happening.

GERTZ: Yeah. It's a total unwillingness to grapple with your own power and influence and, like, your own ability to shape the debates that are happening right now.

LEVY: Yeah. Is there any way to change this, or is this just what we're stuck with?

GERTZ: I think that doing this sort of criticism does have an impact, not least because it provides some sort of alternate framing on what the media is doing. You know, if they are able to just kind of do this sort of thing without any kind of pushback, they're not going to course correct at all. I think there's at least some opportunities to move the debate in a more productive direction just by pointing out how ridiculous some of this is getting.

LEVY: Yeah. I guess. I just — it doesn't seem to be working to me. And, Matt, you know that I have always been a huge fan of Media Matters from the start. And, you know, you guys have been at this for quite some time.

GERTZ: Yeah. With the lotion nonetheless.

LEVY: Yes. Absolutely. It doesn't seem to be getting any better, and The New York Times continues to do it. I single them out because they're The New York Times, but it's not like The Washington Post is any better. The Wall Street Journal, I sort of, at this point, don't expect to be any good.

But it just does seem like so much of the political coverage is just perfectly encapsulated in this one story. And it's really is a microcosm of what we've been seeing for years and certainly what we've been seeing since Trump came on the scene and the way in which Trump has been covered versus the way Democrats have been covered.

GERTZ: Yeah. I mean, it's certainly extremely frustrating, and I am someone who bangs my head against this wall basically all day every day.

LEVY: Yeah. That's your job.

GERTZ: Yeah. No. Absolutely. The way that I look at it is that this sort of thing is just a constant struggle, one that you have to continue doing every day, one that you never really win.

There's no point, I think, in which, everything changes and there's some sort of final victory. Just like in broader politics, there's no point in which, you know, the Republican Party will give up and decide that they will no longer exist. You need to continue to put up the fight and make your case and try to make things just a little bit better, as best you can.

LEVY: Well said. And, Matt Gertz, thank you so much for being here. Read Matt's work over at Media Matters. And in all seriousness, I do thank you for for banging your head against the wall every day as a career path. It's an odd choice, but a heroic one.

GERTZ: I've got a very hard head, but thank you very much.