Allies of President Joe Biden are pointing fingers at his legal and communications teams for missteps they say aggravated the political damage of special counsel Robert Hur’s findings in his classified documents investigation.
Some leading Democratic politicians expressed their frustration directly to high-level administration officials in the wake of the report, insisting that the overall response to the probe had been too muted and that the release of the response was completely bungled politically.
Hur declined to bring criminal charges against Biden and said the facts stopped short of finding he willfully retained classified material. But in doing so, Hur offered a deeply damaging portrait of an aging president beset by memory issues, who had trouble recalling dates and details during his five-hour interview with the special counsel.
White House and Biden allies have taken aim at Hur for what they view as a gratuitous characterization of the president. But some Democrats and supporters of the president have questioned the decision to sit for a five-hour interview over two days last October amid a spiraling Middle East crisis. They’re also putting scrutiny on the decision to allow the interview to be recorded and for the communications strategy that they believe has added to the president’s reelection woes.
A source close to the Biden legal team pushed back at the criticism of their strategy, saying, “After a hostile prosecutor investigated the president for 15 months trying to find something to charge, the Biden legal team strategy ended with zero indictments and total exoneration. That is an unequivocal win.”
From the beginning of the documents matter, in November 2022 when classified documents turned up at a former office space Biden used between his vice-presidential tenure and his White House term, the president’s strategy focused on cooperating with the National Archives and FBI.
The strategy was as much legal as it was political: Biden’s aides hoped to draw a contrast with Donald Trump, whose alleged obstruction in his own classified documents investigation led to criminal charges. Indeed, Hur compared Biden’s cooperation favorably to Trump’s in his report.
The president and the White House faced an additional incentive to cooperate. If they didn’t, the Justice Department was prepared to seek subpoenas to compel searches to retrieve documents, CNN has previously reported.
Hur’s report, which concluded with no charges, would suggest that the strategy worked — except for the multiple instances in the report questioning Biden’s memory, including the line that listed among the reasons to not bring charges: “Mr. Biden would likely present himself to a jury, as he did during our interview with him, as a sympathetic, well-meaning, elderly man with a poor memory.”
Some close to Biden have questioned whether he received sound legal advice during the high-stakes investigation, a source told CNN, raising specific concerns about why lawyers allowed Biden to be interviewed in the immediate aftermath of the Hamas terrorist attack on Israel on October 7.
White House Counsel Ed Siskel and Robert Bauer, the president’s personal attorney, were in the White House Map Room for the president’s interview with Hur, people briefed on the matter said. The interview took place after weeks of negotiations, a standard part of such investigations.
Unlike Trump, whose lawyers refused to allow an in-person interview and instead submitted written answers to questions from special counsel Robert Mueller’s team in the Russian election interference investigation, Biden’s lawyers never contemplated such a move. The strategy of drawing a contrast with Trump, officials say, made sitting for an in-person interview a no-brainer.
Surprise over the handling of Biden’s interview with Hur
Several former Justice Department and White House lawyers who are experienced in dealing with situations where a president or vice president is being interviewed stressed the importance that lawyers negotiating with the special counsel have extensive criminal and trial experience.
While the sources gave credit to Biden’s team for early cooperation with the National Archives and the FBI when classified documents were first found in Biden’s office and home, they stressed that special counsels often dig for an extensive level of detail, including through an interview process, to produce a final public report.
Recognizing those factors would be critical when negotiating interview parameters, including whether it was recorded.
“Sometimes you want a recording, and it helps you…for nuance and clarity,” one of the sources said. “But with a president or vice president, you would negotiate that because you know it is going to become part of the public record sooner or later.”
“This could have easily been negotiated,” the source continued, voicing surprise at both the timing of the interview and the length of the sessions, which were spread out over two days on October 8 and 9.
A White House official previously told CNN that Biden had been “understandably distracted” the weekend of the Hur interview, given that a war was breaking out in Israel.
The interview with Hur had been scheduled well before the attacks in Israel, which consumed much of Biden’s time in the lead-up to the event. He spoke with Prime Minister Benjamin Netanyahu an hour or so before the interview occurred.
While there was some initial discussion of postponing the interview, Biden and his lawyers ultimately decided against it because they hoped it would help expedite Hur’s investigation. It also wasn’t clear when the next opportunity would be to block off large chucks of time on Biden’s schedule, particularly with a budding war in the Middle East.
Officials also said Biden determined an interview would demonstrate he was being transparent with the special counsel and provide a contrast with Trump’s attempts to impede the investigation into his own handling of classified documents.
One Democratic ally close to the White House said they couldn’t fault the president’s legal team for consenting to a recorded interview with the special counsel given the politically charged nature of the probe. They also wouldn’t second guess the decision to go ahead with the interview the weekend of October 8.
“You can second guess it now, but at the time it clearly felt like the right thing to do to get it over with,” they said. “That’s a tougher call looking in hindsight.”
Questions over decision to have Biden face the press
The public-facing response in the immediate aftermath of the report’s release has also invited criticism.
The choice for Biden to make remarks and take questions from reporters afterward – just hours after the Hur report came out – has been polarizing.
While the president seized the opportunity to forcefully reject some of the claims in the report, including the fact that he allegedly couldn’t remember when his late son, Beau, had died, the impromptu news conference after the speech invited numerous questions about his mental acuity and age.
Biden flashed deep irritation as he fielded those questions, and the president was undoubtedly on defense.
It was a mistake for the White House to “put him out on weakness and not strength,” one administration official said.
Others disagree.
“I do think showing some fire in the belly was not a bad thing and for people to see,” said a former senior White House official. “I do think they had to show some urgency on Thursday night.”
Some Biden allies also believed the optics of Biden’s statement – standing in front of a wall of shouting reporters, at moments appearing uncertain – could have been better managed, particularly at such a highly sensitive moment.
The White House said Tuesday it was Biden’s own choice to appear Thursday evening from the Diplomatic Reception Room.
“It was the president’s idea. It was his idea,” press secretary Karine Jean-Pierre said.
“You saw the president do this, make a statement and take questions from all of you, because he wanted to do it,” she said.
As Biden was speaking from the podium, some of his senior-most aides – including communications adviser Anita Dunn, message guru Mike Donilon and chief of staff Jeff Zients – listened from the back of the room.
Frustration with lack of coordinated response
Some White House officials and Democrats close to the White House, including some former administration officials, were left wondering why there didn’t appear to be a clearer and more forceful pushback against Hur’s report the moment it was made public.
When news of the report first broke, some White House officials felt frustrated about not having been armed with clear talking points, multiple sources said. The grave sensitivities surrounding the special counsel investigation naturally meant that only a very small group of Biden advisers were in the know about the details of the lengthy report – but that left some of those who were in the dark feeling discouraged.
“It was clear from the outset that they were scrambling to land on a message,” said one former official, who wondered out loud whether it would have helped for more White House officials to have been in the loop to help prepare a more fulsome response.
One person briefed on the matter pushed back against the suggestion that more staffers should have been briefed ahead of time. “The special counsel forced the attorneys who reviewed the report in advance not to share information about the contents with anyone else,” they said.
White House officials stood by the forcefulness of the White House’s pushback to Hur’s report, saying not only did Biden take questions from reporters Thursday night, but the next day, White House counsel spokesman Ian Sams joined the press briefing.
The White House has also sent a letter to the White House Correspondents’ Association taking issue with news coverage of the Hur report, the officials pointed out, while the Biden campaign has pointed to allies and legal experts questioning aspects of the report that the White House sees as problematic.
Still, some Biden allies have questioned why the White House declined to have the president sit down with CBS News for a pre-Super Bowl interview – a unique opportunity to send a clear message to more than 100 million Americans tuning in over the weekend on the heels of the special counsel report.
The White House said it didn’t want to interrupt a non-political event with a presidential interview and that the president would find “many other ways” to communicate with Americans. In fact on Sunday, the Biden campaign joined TikTok for the first time and posted a video.
CNN’s Edward-Isaac Dovere contributed to this report.
