Robert Hur Just Gave Democrats An Off-Ramp

Will they take it?

A lot of Democrats are furious right now that special counsel Robert Hur, in his report explaining why President Biden should not be indicted for retaining classified documents, said that one reason he recommended against an indictment is that, in so many words, no jury would believe Biden was mentally capable of engaging in any kind of criminal conspiracy. He didn’t need to say that, after all. He had a host of other reasons for not indicting—the largest one being Biden’s ready cooperation with the investigation. Biden’s inability to recall the precise circumstances around what he took when and where he kept it is a common problem with witnesses and didn’t need to be described in a way that suggests incipient dementia. The case just isn’t even close to a slam dunk, and I understand why Democrats feel like it was a low blow to take this cheap parting shot.

But they shouldn’t look at it as a cheap shot. They should look at it as a gift.

It’s important to be clear about what Hur actually said. He didn’t say Biden was mentally incapable of a crime requiring willful intent. He said no jury would believe that he was. A jury is a stand-in for the people as a whole, however, and the same thing Hur said about a jury applies to them. If no jury would believe Biden could have meant to hold on to those documents, why should anyone think the electorate will believe it? And if the electorate believes he’s not capable of willful intent in a criminal matter, why would they believe he’s capable of willful intent when it comes to fulfilling the responsibilities of his office?

The people closest to Biden know just how mentally acute he actually is. They know whether he’s capable of doing the job. If he’s unfit, and they are letting him run anyway, they’re doing their country a gross disservice. So I’m going to assume that they know he is capable of doing the job, with the support of his capable staff, that he isn’t clearly unfit or incapable, that the memory lapses and mistakes (tonight he confused what country Abdel Fattah El-Sisi is president of) that may be substantially due to age are not actually signs of more serious cognitive difficulties, and don’t indicate any inability to make the kinds of decisions that presidents need to make regularly.

It doesn’t matter, though, because Biden doesn’t just have to be capable of doing the job—he has to demonstrate that he is capable of doing the job, and he has to do it in the face of the claim by a special counsel that he is “a sympathetic, well-meaning, elderly man with a poor memory,” and a Republican Party apparatus determined to turn that characterization into a diagnosis of dementia. Polls have shown that Biden’s age has been a major liability for years now. That existing public perception has just been loudly confirmed by an authority that the Democrats will have trouble credibly impeaching. If Biden can’t change it persuasively by campaigning like a much younger man, it’ll be further confirmed, and he’ll lose the election. That’s the bar: not whether he can do the job, but whether he can, by his own actions, dispel all public doubt about whether he can do the job.

Does the leadership of the Democratic Party believe he can clear that bar? Does anyone, after tonight’s press conference, believe he can clear that bar?

In 2015 and 2016, Democrats were furious that the Republican witch hunt against Hillary Clinton had spun a bunch of misdemeanor offenses and mistakes into something worth investigation by the FBI. (Back then, Republicans thought the FBI were the good guys, in part because the agents were mostly Republicans.) They thought this was so unfair, and Hillary Clinton so clearly owed her shot to become the first woman president, that they not only didn’t try to stop her from running, but cleared the field of plausible opposition (including Biden) and chose as their nominee someone under active investigation by the FBI. They dared the American people not to believe Clinton’s version of events, and when they failed to achieve that objective they forced the American people to choose between two people they didn’t like or trust, confident that Trump’s disqualifications were so much more obvious and substantial that they could easily win that contest.

We all know how that turned out.

Convincing a sitting president not to run for reelection is a much more difficult task than simply allowing a contested primary. It’s also far more politically risky; it would mean giving up the advantages of incumbency, potentially nominating someone else who isn’t particularly well-regarded, and implicitly admitting that there was a problem here all along that was not being addressed. But at this point, if they nominate Biden, the Democrats will be forcing Americans to choose between two nominees neither of whom they believe are fit to do the job. That kind of choice did not work out well for them last time around, and based on the polls it looks like it is working out worse now.

Robert Hur gave Democrats a gift because they—and “they” means Biden’s old boss—now have an excuse to talk to Biden in precisely these terms. Because the hit was unfair, they can credibly say that it’s just business, nothing personal. They know he can do the job. But the American people simply won’t believe it anymore. For the good of the country, he has to step aside.

Will they do that? I doubt it. But if the Democrats don’t take this give of an off-ramp, it means one of three things. Either it means that Biden is selfish enough to put Trump in office to salve his own pride, and nobody, not even Obama, can prevail against him. Or it means that the Democrats genuinely don’t believe they have a better horse to run than someone 70% of the country doesn’t want to run again. Or it means that they simply don’t believe the polls, and see no reason to do anything drastic to change the race’s dymamic. (Or, to pick a fourth possibility, it means that they would rather lose to Donald Trump then have that difficult conversation.)

Which of those strikes you as a winning message going into the general election?