Halls of Shrewd'm / US Policy
No. of Recommendations: 2
Here's something I don't understand. Perhaps Albaby can explain it (I know he can!)
Hur's opening statement said that Biden 1) is on tape saying "I've got all the classified stuff in the basement" (or something to that effect) on a phone call to his ghost writer when Biden was just a private citizen, and 2) boxes of classified "stuff" were actually found in that "basement". But 3) Biden said during his 5 hour interview with Hur that he had no recollection of that phone call.
So, doesn't 1 establish mens rea (guilty mind) and 2 establish actus reus (guilty act)? Yet Hur didn't file charges, citing Biden's "kindly, good intentioned, forgetful old man" demeanor, which could make him sympathetic to a potential jury and make a guilty verdict unlikely.
Just because someone can no longer remember (or at least claims to - item 3) a past crime does not absolve them of that crime, right?
If I rob a bank 20 years ago and there is video tape of me doing it, and I keep the cash in my basement, unspent, and even brag on a recorded phone call to a friend to that effect 20 years ago, yet, when finally indicted and interviewed in the present day, I claim to not remember doing any of that because I'm now a "kindly forgetful old man", am I then absolved of my past crime?
No. of Recommendations: 8
Hur's opening statement said that Biden 1) is on tape saying "I've got all the classified stuff in the basement" (or something to that effect) on a phone call to his ghost writer when Biden was just a private citizen, and 2) boxes of classified "stuff" were actually found in that "basement". But 3) Biden said during his 5 hour interview with Hur that he had no recollection of that phone call.
So, doesn't 1 establish mens rea (guilty mind) and 2 establish actus reus (guilty act)? The Albaby-signal! Quick, to the law cave!
The key is to remember that there is a huge difference in the
criminal statutes between ordinary classified information and "national defense information," which is a subset of classified information that relates to specific substantive topics. Because the Vice-President was allowed to have classified information outside of the office, the classified information would have been legal to be there during his term of office. But the criminal statute then would make it illegal for him to keep the national defense information part of that at a time when he was asked to return it. IOW,
criminal liability only inheres if he knowingly retains national defense information during the time when he was a private citizen.
There's no evidence to prove he did. There was a tranche of classified documents that related to national defense that was found in Biden's Delaware home in 2022, which Hur labels the "Afghanistan documents." But there's insufficient evidence to prove either that the Afghanistan documents were in Biden's Virginia home in 2017, or that Biden knew about
those specific documents when he had left office.
There are at least three defenses likely to create reasonable doubt as to such charges. First, Mr. Biden could have found the classified Afghanistan documents at the Virginia home in 2017 and then forgotten about them soon after. This could convince some reasonable jurors that he did not willfully retain them. Second, Mr. Biden might not have retained the classified Afghanistan documents in the Virginia home at all. They could have been stored, without his knowledge, at his Delaware home since the time he was vice president. This would rebut charges that he willfully retained the documents in Virginia. Finally, Mr. Biden could have found only some of the classified Afghanistan documents in the Virginia home in 2017-the ones in the manila "Afganastan" folder found in the garage box-and it is unclear whether this folder contained national defense information. This too would rebut charges that he willfully retained national defense information, as required by the criminal statutes.https://cases.justia.com/delaware/court-of-chancer...
No. of Recommendations: 2
IOW, criminal liability only inheres if he knowingly retains national defense information [a subset of "classified information"] during the time when he was a private citizen.
Ok, thanks, Albaby, as usual. It's always the details that matter.
And as far as Biden being portrayed by Hur as a "kindly, well-meaning, forgetful old man", that should play no part in actual guilt or innocence (although it might still influence whether a prosecutor brings charges) correct?
No. of Recommendations: 0
No. of Recommendations: 4
And as far as Biden being portrayed by Hur as a "kindly, well-meaning, forgetful old man", that should play no part in actual guilt or innocence (although it might still influence whether a prosecutor brings charges) correct?
I mean, a little of both?
Again, the crime is deliberately refusing to give back national defense information when the government asks for it. If Biden genuinely didn't know that the Afghanistan documents were in his possession, he wouldn't be guilty. This particular statute is a specific intent crime; in order to be guilty, the person would have had to be aware that they were in possession of the covered information and knowingly deciding not to give them back.
Clearly Hur felt that Biden could convince a jury that even if the Afghanistan documents were in his Virginia house in 2017, and even if he had seen them there, that he wouldn't have remembered that those specific documents were in his possession when he was asked to return all classified documents. But there's always the possibility that that's true - that he genuinely forgot that those specific documents were in his possession, even if at one point he had seen them there.
No. of Recommendations: 2
But there's always the possibility that that's true - that he genuinely forgot that those specific documents were in his possession, even if at one point he had seen them there.
Ok. So even if - at a time before being asked to return them - Biden knew he had those Afghanistan documents - and kept them as a private citizen - he had returned them all when asked to, he wouldn't have committed a crime?
No. of Recommendations: 11
So even if - at a time before being asked to return them - Biden knew he had those Afghanistan documents - and kept them as a private citizen - he had returned them all when asked to, he wouldn't have committed a crime?
As far as I know, yes. As long as they came into his possession legally (which it appears they did), it's not a crime for him simply to possess them. But it is a crime for him to refuse to return them.
That's why the Trump and Biden cases differ. Trump's issues don't stem from having the documents in the first place - they stem from refusing to give them back and then trying to conceal the fact that he kept them.
No. of Recommendations: 3
That's why the Trump and Biden cases differ. Trump's issues don't stem from having the documents in the first place - they stem from refusing to give them back and then trying to conceal the fact that he kept them.
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