White House objected to Justice Department over Biden special counsel report before release

Washington — Lawyers for the White House and President Biden angrily objected to a Justice Department official over several aspects of special counsel Robert Hur's report on the president's handling of classified information the day before it was released, according to a newly revealed letter.

Hur's report, issued last week, said Mr. Biden's retention of classified material after leaving the vice presidency in 2017 did not warrant criminal charges. But the 345-page report also said Mr. Biden's handling of sensitive information, some of which appeared in entries in his personal journals, was "totally irresponsible." Hur's team of investigators said they believed Mr. Biden would "present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory" as part of their justification for their decision that charges weren't warranted.

In a letter to Attorney General Merrick Garland on Feb. 7, White House counsel Edward Siskel and the president's personal attorney Bob Bauer registered their objection to "certain aspects of [Hur's] draft report that violate Department of Justice policy and practice by pejoratively characterizing uncharged conduct." Politico published a copy of the letter on Thursday, and a person familiar with the exchange confirmed its contents to CBS News. The two attorneys appealed directly to the special counsel in a separate letter days earlier.

"No law enforcement purpose"

The Feb. 7 message to Garland compared Hur's characterizations to infamous comments made by FBI Director James Comey in 2016, when he declined to bring charges against Hillary Clinton over her use of a private email server but criticized her conduct as "extremely careless." Siskel and Bauer noted the Justice Department's inspector general later determined that Comey's comments violated "long-standing Department practice and protocol" about discussing accusations without filing charges.

The attorneys zeroed in on Hur's commentary on Mr. Biden's memory and said the report went too far in drawing conclusions about his mental capacity.

"The Special Counsel can certainly and properly note that the President lacked memory of a specific fact or series of events. But his report goes further to include allegations that the President has a failing memory in a general sense, an allegation that has no law enforcement purpose," they wrote, noting that investigators reached those conclusions based on five hours of interviews with the president. "A global and pejorative judgment on the President's powers of recollection in general is uncalled for and unfounded."

The attorneys wrote that "we would be remiss if we did not forcefully object to aspects of Mr. Hur's report that openly, obviously, and blatantly violate Department policy and practice as well as the bipartisan consensus on the appropriate limitations on Special Counsel reports."

The next day, Bradley Weinsheimer, an associate deputy attorney general, replied to Siskel and Bauer on behalf of Garland and dismissed their concerns as "misplaced." CBS News reviewed a copy of that letter, which Politico also published. Weinsheimer is a top career official at the Justice Department who is tasked with reviewing objections from defense attorneys in other high-profile cases, including the investigations into former President Donald Trump and Hunter Biden.

"The context in which this information is used in the report makes it appropriate under Department policy and the Special Counsel regulations," Weinsheimer wrote. "The identified language is neither gratuitous nor unduly prejudicial because it is not offered to criticize or demean the President; rather, it is offered to explain Special Counsel Hur's conclusions about the President's state of mind in possessing and retaining classified information."

Weinsheimer said Hur was "applying the evidence he gathered to the applicable law."

"Special Counsel Hur's report provides significant detail on the bases for his declination decisions. This includes factors that support his determination of whether the President knew he possessed classified information and whether he acted willfully in possessing and retaining it," he continued. "The language to which you object goes directly to these issues."

Weinsheimer also dismissed the comparison between Hur's conclusions and Comey's 2016 comments, calling it "inapt."

"[Comey's] reference to Secretary Clinton being 'extremely careless,' the [Office of Inspector General] found, was a comment on her uncharged conduct — it was not a comment offered in explanation of the evidence and its application to the law," Weinsheimer wrote. "For these reasons, the OIG concluded Director Comey acted outside of his authority and in violation of Department policy. In contrast, Special Counsel Hur is specifically charged by the Special Counsel regulations and his appointment order with making charging and declination decisions."

Hur is scheduled to testify publicly about his report before the House Judiciary Committee on March 12.

Bauer told "Face the Nation" on Sunday that the president's team had raised their issues with the report with Garland, but that it was clear the attorney general "had committed to make the report public the way that the special counsel had written it, and so that's the report that we have."

Stefan Becket

Stefan Becket is managing editor, digital politics, for CBSNews.com. He helps oversee a team covering the White House, Congress, the Supreme Court, immigration and federal law enforcement.

Twitter