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The Memory Hole

Fintan O’Toole
By drawing broad conclusions about Joe Biden’s mental capacities, Robert Hur’s special counsel report went far beyond its remit—but it still leaves Democrats with a political dilemma.

Nathan Howard/Getty Images

President Joe Biden addressing the press in response to the Special Counsel’s report on his handling of classified documents, Washington, D.C., February 8, 2024

An empty bucket, a Zappos shoebox, potting soil, a collapsed dog crate, a dog bed, a broken lamp wrapped in duct tape, some synthetic firewood—the flotsam and jetsam of the half-forgotten years. These leftovers from past lives accumulate in suburban garages as the people who once wanted them get older and older. Useless and unnoticed, they yet cling on doggedly until time does its work, their owners depart for good, and new people move in and take them to the dump.

But this particular jumble of detritus has been rescued from oblivion and given a new home in the eternal archives of US history. For it included another item: a damaged box containing classified documents relating to America’s failed war in Afghanistan. That box, like Pandora’s, contained a whole world of trouble. From it has emerged the reality that the Democrats have been trying to evade—the vulnerability created by Joe Biden’s senescence.  

In the report of the special counsel Robert Hur into Biden’s retention of official documents at his homes, there is a photograph taken in the garage of his residence in Wilmington, Delaware, by an FBI agent in December 2022. It shows a familiar chaos of discarded objects: the console of a treadmill, red drain rods and a blue ladder, dried white flowers drooping disconsolately from a basket—kept, presumably, because they once meant something. Among them is the open brown cardboard box, its left side tattered and dented, from which peep the blue and white tops of documents Biden used when he was vice-president and then forgot to return after he left office.

US Department of Justice

A photograph of Joe Biden’s Delaware garage reproduced in the special counsel’s report, December 21, 2022

Seen differently, it might all be a conceptual art installation, a mordant commentary on the way America’s longest war has already been consigned to the national garage as just another dust-gathering discard. Instead, it dramatizes a much more literal question of memory and forgetting. Hur used the opportunity of his report to characterize Biden as an “elderly man with a poor memory” and “diminished faculties.” In his disastrous press conference of January 8, responding to Hur’s report, Biden in turn made a verbal slip that seemed to contradict his insistence that “my memory is fine,” describing the Egyptian president Abdel Fattah el-Sisi as “the president of Mexico, el-Sisi.”

The irony here is that Hur uses the location of the box of Afghanistan-related papers in the garage in Wilmington as evidence of Biden’s likely innocence of any crime:

A reasonable juror could conclude that this is not where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy. Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of.

Hur, in the body of his report, is actually quite good on the subject of forgetfulness. He recognizes that Biden, after he left office as vice-president, had such long experience of reading official documents that they might not be especially memorable to him: “Mr. Biden, after all, had seen classified documents nearly every day for the previous eight years.” In relation to the contentious documents that Biden retained, including a memo he wrote to then-president Barack Obama opposing a “surge” of US troops in Afghanistan, Hur suggests that some members of a putative jury might “conclude that if Mr. Biden found the classified Afghanistan documents in the Virginia home, he forgot about them rather than willfully retaining them.” In other words, Biden’s forgetfulness was not pathological—it was merely the mundane operation of the human mind, which a jury would accept as normal and understandable.

This is surely right. It’s not just that the evidence related to the classified documents does not support any accusation that Biden deliberately withheld them from the archives. It’s also that it does not support the much more politically charged implication that the poor treatment of these documents is evidence of senility. Biden had these papers in his homes quite legitimately while he was vice-president. Some of them got shunted into the memory hole of an ordinary suburban garage. That he forgot about them is emphatically not evidence of “diminished faculties in advancing age.”

The plain fact is that memory is always somewhat hazy, at any age. Indeed, as the White House noted in its rebuttal to the report, Hur references other instances of imprecise recall. Biden’s counsel Patrick Moore had the job of sorting Biden’s archives and searching for potentially missing documents that Biden should have handed over. Moore found documents in a small closet in Biden’s office at the Penn Biden Center at the University of Pennsylvania. Hur reports that “When interviewed by FBI agents, Moore believed the small closet was initially locked and that a Penn Biden Center staff member provided a key to unlock it, but his memory was fuzzy on that point.” Equally, Hur reports of another of Biden’s lawyers, John McGrail, that his memory of certain events was inconsistent with contemporary written records but concedes sensibly that “McGrail’s memory of these events could well have faded over the course of more than six years.” Does this mean that Moore and McGrail had diminished faculties? Of course not—people forget things.

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The politically explosive part of Hur’s report, however, relates to a much more concentrated period of time: what Biden identified in his press conference as a five-hour grilling by the special counsel’s team over two days on October 8 and 9, 2023. This was in the immediate aftermath of the shock of Hamas’s atrocious assault on civilians in Israel. As Biden put it in his press conference, “it was in the middle of handling an international crisis.” In its rebuttal, appended to Hur’s report, the White House says that “in the lead up to the interview, the President was conducting calls with heads of state, Cabinet members, members of Congress, and meeting repeatedly with his national security team.” If Biden’s mind was elsewhere during the interviews with Hur, most of the world would surely agree that that’s exactly where it should have been.  

Hur’s account of this meeting is nonetheless worrying:

In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (“if it was 2013—when did I stop being Vice President?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still Vice President?”). He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he “had a real difference” of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama.

These lapses of memory are significant and they do provide a troubling glimpse of how Biden may sometimes function in private meetings in the White House. But Hur also performs a sleight-of-hand. He turns the evidence from these two meetings in October into a much more sweeping insinuation about Biden’s mental capacities by linking it back to his unremarkable amnesia about the storage of the documents. He does this by projecting himself into the minds of putative jury members who would see Biden “as a sympathetic, well-meaning, elderly man with a poor memory.”

How does he reach this surmise? He tells us explicitly: “At trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him” (my emphasis). What Hur does here is to fuse the events that would be the subject of such a trial—Biden’s failure to remember where some documents were stored, a failure Hur accepts as perfectly normal—with his own characterization of Biden’s demeanor at the two meetings in October. Thus the perfectly mundane imperfections of memory become part of an accusation of near-senility, the only evidence for which is in those two meetings on especially fraught days in October.

This is grossly unfair. Insofar as Hur has a legitimate concern with the operation of Biden’s memory, it relates to the actual subject of his investigation: the storage of the documents. He provides no evidence at all that there was anything remarkable about Biden’s forgetfulness in this regard. Instead of sticking to his brief, however, Hur then shapes a politically lethal phrase out of a judgment he is not qualified to make—the lawyer appointing himself both as a doctor making a cognitive assessment and as a dramatist inventing a scenario for how twelve members of an imaginary jury might perceive Biden’s imaginary appearance in a witness box. It would be naive to think that Hur was unaware of the potentially historic consequences of this leap from evidence to conjecture.

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This unfairness creates in turn a natural reaction among Democrats. If Biden is being treated so badly, the decent thing is to defend him and to dismiss the whole story as a politically motivated farrago. This is a serious mistake. Hur’s commentary on Biden’s cognitive abilities may be irrelevant to the job he was supposed to be doing. But it is not, alas, irrelevant to a presidential election that could shape American history for decades to come. For even if Hur’s is a low blow, it is a punch that someone was always going to land. Biden’s age is a gaping vulnerability that the Democrats have pretended not to see.

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The right seizes on and magnifies every gaffe that Biden makes, but the blunders are real and seem increasingly frequent. In the days before he mixed up Sisi and Andrés Manuel López Obrador, he also confused Helmut Kohl with Angela Merkel and François Mitterrand with Emmanuel Macron. Under the pressure of a vicious election campaign, these moments may well happen more often and attract more attention. Hur’s report feeds into a narrative that was already established—that Biden is losing it—and makes it unavoidable.

Four days before Biden’s disastrous press conference, Hage Geingob died in a hospital in Windhoek, the capital of Namibia. Geingob, who was eighty-two and the serving president of Namibia, was the only other octogenarian running a democracy. His death leaves Biden in a club of one. Biden really is exceptionally old for a working head of government. And there has been consistent polling evidence that this is one kind of exceptionalism that Americans don’t want to claim. As the New York Times’s chief political analyst Nate Cohn puts it, Biden’s age is “arguably the single most straightforward explanation” for why he is trailing Donald Trump. “It’s what voters are telling pollsters, whether in open-ended questioning about Mr. Biden or when specifically asked about his age, and they say it in overwhelming numbers.” Those numbers include a majority of Democrats.

It’s no good pointing out that Trump is almost as old and equally prone to verbal slips. It’s no good highlighting the undoubted truth that, while Biden’s language may sometimes be uncomfortably sloppy, Trump’s loose lips utter toxic lies and dangerous slurs. These things don’t change the facts that no one has ever run for a presidential term at the end of which he would be eighty-six, that Trump gets a free pass on almost everything, and that Biden, fairly or otherwise, is the lightning rod for deep generational discontents and widespread unhappiness at the persistence of an American gerontocracy. His age gives Biden an apolitical way to retire gracefully, standing by his considerable achievements in office while passing the problem of being too old to be president onto Trump.

Nikki Haley was probably not wrong when she suggested after Biden’s press conference that “the first party to retire its eighty-year-old candidate will win the White House.” But if Biden persists in running, there will in effect be only one candidate: Trump. He will be the Republican contender but he will also be, as the monster to be feared, the primary motivator for Democratic voters. The election will be a referendum not on the incumbent president but on his challenger. Since Biden is unable to shake off the perception that he is too old to be president, he cannot make his own case effectively. He will rely on the simple proposition that he is not Trump. In a deeply uncomfortable sense, Trump, having taken ownership of the Republicans, will own the Democrats too.

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