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Two Bottom Lines From Last Week’s Big Headlines on the Border and Biden.

Two Bottom Lines From Last Week’s Big Headlines on the Border and Biden.

Posted by Ed Folsom, February 14, 2024.


Two bottom lines from last week’s big headlines: (1) Under the border bill voted down last week in the Senate, despite Biden saying “If that bill were the law today, I’d shut down the border right now and fix it quickly,” the bill would never have “shut down” the border; and (2) Despite news reports to the contrary, special counsel Robert Hur did not clear President Biden of criminal wrongdoing, and Hur did not gratuitously smear Biden when he described the way Biden would likely present himself in a criminal trial. Those are the generalities. Now let’s examine the specifics.

Border Bill Bottom Line: The Border Bill, Senate Appropriations H.R. 815, Would Never Have “Shut Down” the Border.

In a speech delivered on January 27, 2024, President Biden said of the border bill that was then under discussion in the Senate:

“It’ll also give me as president, the emergency authority to shut down the border until it could get back under control. If that bill were the law today, I’d shut down the border right now and fix it quickly.”

In fact, the bill would never have allowed its “emergency powers” to be used to completely stop illegal entries into the U.S. Its provisions required that even when its emergency powers were in effect:

“[T]he Secretary [of Homeland Security] shall maintain the capacity to process, and continue processing, under section 235 or 235B a minimum of 1,400 inadmissible aliens each calendar day cumulatively across all southwest land border ports of entry in a safe and orderly process developed by the Secretary.” (H.R. 815, p. 219).

Note that this proposed requirement specifically applies to inadmissible aliens. Note that 1,400 inadmissible aliens per day is the minimum number the Secretary would be required to continue to process each day at southwest border ports of entry. Note that there is no cap on the number of inadmissible aliens the Secretary could have continued to process at these locations, just a minimum of 1,400. Note that this minimum amounts to 511,000 inadmissible aliens per year and that as long as inadmissible aliens entered only at ports of entry they could continue to enter at a much higher rate while emergency powers remained in effect.

But that’s not all. The bill’s provisions on the mandatory lifting of emergency powers contained another clear indication that the border would never be shut down to inadmissible aliens. The bill allowed the Secretary to exercise emergency powers to summarily remove or deny entry to certain inadmissible aliens when a certain number of illegal entries occurred. Emergency powers were to be discretionary when there was a 7-day average of 4,000 or more aliens encountered per day. They were to be mandatory when there was a 7-day average of 5,000 or more per day or when 8,500 or more encounters occurred on a single day (H.R. 815, p.p. 211-212).

When were emergency powers required to be lifted? Within 14 days after a period of 7 consecutive days during which the average number of encounters dropped below 75% of 4,000, if the exercise of emergency powers was discretionary, or 75% of 5,000 if the exercise was mandatory (H.R. 815, p. 214). There you go! Seventy-five percent of 4,000 is 3,000. Seventy-five percent of 5,000 is 3,750. The bill anticipates that even while the emergency powers are in effect, we would see more than 3,750 inadmissible aliens encountering authorities each day. Only when the daily flow dropped below that would the Secretary have been required to officially open the spigot to illegal entries by inadmissible aliens again. Let’s see — 3,750 per day is 1,368,750 per year, which is about the population of Maine or New Hampshire. That hardly represents a “closed” border, except in the loopy la la land of Washingtonian terminology inversion.

And there’s even more. The President would have been empowered to override the Secretary’s exercise of emergency powers for up to 45 days each year in the “national interest” (H.R. 815, p.p. 218-219). Also, the emergency powers could not have been enforced for more than 270 days during the first calendar year, 225 days the second year, and 180 days the third year after the legislation became effective (H.R. 815, p.p. 214-218).

In sum, this bill would at no point have closed the border. It would have required the border to remain open to inadmissible aliens at southwest ports of entry – at least 1,400 per day — even when emergency powers were in effect. It anticipated continuing flows of more than 3,750 inadmissible aliens per day when emergency powers were in effect. And it limited the number of days when emergency powers could remain in effect no matter how high the flow. In the first year alone, if only 5,000 inadmissible aliens per day were to have crossed the border during the 90 days of mandatory, unrestricted inadmissible alien in-free time, 450,000 inadmissible aliens would enter in just ¼ of 1 year. Pretty quickly, you’d be talking millions per year. Which, come to think of it, is right where we are already, except with new speedy work permits for the inadmissible aliens.

The Special Counsel’s Report on President Biden’s Illegal Retention of Classified Materials.

Within the past few days, I read a story in the local paper saying that Special Counsel Robert Hur’s report  “cleared” President Biden of “criminal wrongdoing.” Not quite. To quote from the report’s executive summary:

“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods. FBI agents recovered these materials from the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware home.

However, for the reasons summarized below, we conclude that the evidence does not establish Mr. Biden’s guilt beyond a reasonable doubt. Prosecution of Mr. Biden is also unwarranted based on our consideration of the aggravating and mitigating factors set forth in the Department of Justice’s Principles of Federal Prosecution. For these reasons, we decline prosecution of Mr. Biden.”

In other words, the Special Counsel has evidence that President Biden violated the law by willfully retaining and disclosing classified materials as a private citizen. But, because the Special Counsel doubts that his evidence is sufficient to prove a criminal charge beyond a reasonable doubt and concluded that prosecution would not accord with DOJ guidelines on when federal prosecution is warranted, he declined prosecution. Biden isn’t going to face criminal charges for willfully retaining classified information when he was unauthorized to do so. But I suspect that most people think being “cleared of criminal wrongdoing” involves having the authorities render an affirmative judgement that the subject of the investigation did nothing criminal. That’s not the special counsel’s report.

Portions of Hur’s report have come under a firestorm of criticism from President Biden’s supporters and from Biden himself. In the report’s executive summary, Hur stated:

“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt.”

This description of Biden, and passages in the body of the report that bolster the observations, have been attacked as gratuitous and lacking foundation. Wrong el wrongo, I say. First, Hur did not say that Biden is a sympathetic, well-meaning, elderly man with a poor memory. Hur said Biden is likely to “present himself” that way to a jury, just as Biden presented himself that way to Hur when Hur interviewed him. In no sense, then, did Hur pretend (as he has been accused of doing) to diagnose Biden as in fact well-meaning, elderly, or suffering from poor memory. Hur’s concern was to decide whether he could likely prove a criminal offense against Biden beyond a reasonable doubt, not to determine how sympathetic or well-meaning Biden in fact is, or to diagnose whether Biden is in fact elderly and suffers from a poor memory.

As a prosecutor, Hur should be concerned that Biden might come across that way to a jury. That would make Biden someone the trial jury would sympathize with and want to acquit. It’s part of Hur’s calculation of the likelihood of conviction. It doesn’t matter whether Biden is in fact a well-meaning elderly man with a poor memory or just a cagey old guy who knows it’s to his advantage to present himself that way. It does matter that Hur realizes how Biden comes across and is likely to “present himself to a jury.”

In the context of the particular charge that Hur was considering when he made his observations, the observations are acutely pertinent. Here’s why: Hur states his observations while discussing Biden’s possession of certain classified materials regarding U.S. involvement in Afghanistan. These materials were created during Biden’s vice presidency. When Biden was vice president he was authorized to possess them. The materials were located in the garage of Biden’s personal residence, in Delaware, in December of 2022. Although the materials were not secured as they sat in cardboard boxes in Biden’s Delaware garage, Biden was the President of the United States at that time and was therefore authorized to possess them. However, between the date when Donald Trump was inaugurated in January of 2017 and the date Joe Biden was inaugurated in January of 2021, Biden was not authorized to possess them.

In his report, Hur considered the weight of the evidence that he possessed to prove that Biden willfully retained the classified Afghanistan documents when he was not authorized to do so. Hur had a recording from Biden’s biographer, recorded in January of 2017 after Trump’s inauguration. In that recording, Biden talked about having “just found all the classified stuff downstairs.” At the time of the recording, Biden was living at his private residence in Virginia. Hur also had evidence, in the way of details discussed between Biden and the biographer, that among the classified materials Biden said he just found “downstairs” were the classified Afghanistan materials later found in Biden’s Delaware garage. The question for Hur was the likelihood he could prove beyond a reasonable doubt that Biden willfully retained, at his Virginia residence in 2017 when he was not authorized to retain them, the Afghanistan documents that were later found in his Delaware garage in December of 2022.

In weighing the likelihood of proving that particular charge, Hur considered potential flaws in his proof that might amount to reasonable doubt. One thing he considered was whether he could overcome a defense argument that Biden might have realized he possessed the classified Afghanistan documents in his Virginia home, as he discussed with his biographer, but that he might have forgotten that he possessed them immediately afterward. Hur was concerned that a jury might doubt whether Biden’s retention of the Afghanistan documents in those circumstances (realizing he had the materials before they nearly immediately slipped his mind again) would satisfy the elements of willful retention. It was in this connection that Hur laid out the ways that Biden presented himself to Hur as a sympathetic, well-meaning elderly man with a bad memory. In this connection, Hur expressed concerns that Biden was likely to present himself the same way to a jury. And if Biden presented himself that way, Hur judged it likely that a jury would be sympathetic and would question whether Biden might have quickly forgotten that he possessed the classified Afghanistan materials, making his retention of them thereafter not willful.

It was also in that context that Hur made the following observations on pages 207-208 of his report:

“Mr. Biden’s memory also appeared to have significant limitations-both at the time he spoke to Zwonitzer [his biographer] in 2017, as evidenced by their recorded conversations, and today, as evidenced by his recorded interview with our office. Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.

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.

In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall.”

In other words, at trial, Biden would likely present himself to a jury as a sympathetic, well-meaning, elderly man with a bad memory. And that would be trouble for a prosecutor trying to prove beyond a reasonable doubt that Biden willfully retained the classified Afghanistan materials in his Virginia home in 2017.

To put the matter in terms Biden likes to use: It’s just who he is. Why would anyone insist that we must pretend otherwise?

As legitimate as it is for a prosecutor to consider that the target of an investigation might be a sympathetic figure to a jury and that characteristics that the target is likely to display at trial might undercut proof of the criminal charges under consideration, there is also a disturbing reality in the underlying truth displayed here. Although Hur does not state it in his analysis, Joe Biden would in fact be a sympathetic figure in the place where he would face criminal trial, given the political demographic from which the jury pool would be drawn there. Now, add the likelihood that Biden would present himself as sympathetic, well-meaning, elderly, and not of keen memory, and it is very unlikely that he’d be convicted of anything pertaining to the subject matter at hand in the place where he would be tried.

But consider the opposite. Imagine what it would be like for an ex-President who is already widely detested by the political demographic in that same place to face trial on the same subject matter. And imagine that this ex-President would likely present himself in a way that provokes not sympathy but revulsion among the political demographic in that place – that he will almost certainly not present himself to the jury as a well-meaning, elderly man with a bad memory. In that place, the  ex-President’s chances of being convicted rise markedly because of who he is, just as Joe Biden’s drop markedly because of who he is. The prosecutor knows it, and it weighs in his calculation to proceed against the ex-President and not against Joe Biden.

That’s systemic bias.

Even just fostering the perception that things are working that way is a serious problem. And the perception is widely-held. Those fostering these perceptions should be deeply concerned at how they are presenting themselves while they are busy trying to teach helplessness to the populace. Helplessness is a lesson that many of us will always refuse to learn.

Keep in mind, as they continue to present themselves to us this way, it’s just who they are.