Ignore the Gaslighters on the Hur Report

And: addressing some public accommodation controversies.

By and
231

Memory issues, ghost writers, and presidential prosecutions. Media outlets are cherry picking bits and pieces from the Hur Report on Biden’s handling of classified documents, but Sarah and David spend a full episode analyzing its legal standards and implications.

The Agenda:
—Disclosing biases
—Standards of evidence
—Biden’s too old
—Can we get the full recordings?
—No security clearance for the ghost writer
—Partisan brains reading the report
—“No Zionists Allowed” in a bookstore

Show Notes:

—The Hur report

Today’s episode is supported by Burford Capital. Follow the link to learn more: http://burfordcapital.com/ao

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Comments (231)
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  1. Avatar photo
    Ehoop

    Will you guys please cover McCarthy'stake on Hur's testimony on the Fox News Rundown?*
    I feel like there are significant omissions, and it certainly doesn't line up with what I've heard here.
    *I already expect the answer to be no.

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  2. Brandon Hartley

    Another fabulous podcast and explainer - excellent. I have to wonder, though, if you guys are having a bit of "pundit" brain similar to how you describe "political tribalism" brain? What I mean by that is, "Is this whole hubbub a legitimate thing in the broader populace?" To me, when I read about this report and the perspective on it, I very much had the reaction David mentioned in the first third of the podcast: it's a big nothing burger because we knew all this already. Yeah, Biden is completely losing it and is a disastrous choice for president. I would never vote for him except for one scenario - my other choice is Trump. Then I will happily vote for him. He's the clearly better of two dramatically unqualified individuals.

    Maybe I'm just in a weird social circle, but my experience out here in Iowa is that most people realize this.
    They fully understand they'll be pulling the lever for someone unqualified for office. But the presumption (desperate hope) is that he'll be "managed" by responsible individuals (ala Reagan). But Trump will likely bring in yes-men to implement every fevered decision. So the greater threat is obviously Trump.

    All of the "gaslighting", "no, there's no problem here", "oh, Trump's memory is every bit as bad", or "there's a vast conspiracy of whatever flavor" . . . strikes me as the punditsphere creating content for itself? Maybe I'm just not plugged in enough, and you guys definitely have a pundit job to do, so I get it ^_^

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  3. Cmires

    Congrats to you guys for bringing all the goods and helpful and compete perspective to this. Not to be found anyplace else. It made me think that the only suspect inclusion in the report were the comparisons to the Trump case. Certainly not relevant to the facts or conclusion with respect to Joe. And I think I would convert David’s characterization of a group tackle to a group bed wetting. No one was tackled but many people were attempting to relieve themselves and feel better but ended up being embarrassed to varying degrees.

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  4. Avatar photo
    Stephanie

    I wonder if Sarah should have disclosed that she has been helping Mr. Hur prepare for his appearance before Congress to answer questions about his report.

    https://t.co/ZzExnCQ79g

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Two things:
      1) I haven’t agreed to anything! Rob called and asked whether I might be willing to help him. He didn’t offer me a job and i didn’t take one.

      2) that convo happened yesterday afternoon. So after we recorded AO. I called Steve hayes immediately to tell him. Then 3 hours later a reporter called and said he had heard Rob asked me to help. You’ll hear on the dispatch pod that we recorded this am that I give a full disclosure.

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        Earl King

        Other than disclosing your involvement, your knowledge and experience would be helpful to him and to the idiots in Congress. good for you!

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          Stephanie

          He has to be ready for all kinds of leading questions and traps--from both sides. I don't envy him.

          Many former Federal prosecutors are defending him, even liberal ones like Barb McQuade and Elie Honig, who appear often on CNN. They have some reservations about the "flourishes" he laid on about Biden that seemed a bit partisan, but aside from that, felt he was scrupulous and fair.

          Elie Honig said that it's not a mechanical process, that information isn't fed in and conclusions are automatically spit out; a prosecutor has to weigh many considerations, and that this one was "on a knife edge."

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            Earl King

            Can you imagine an 86 year old Biden on the witness stand? DOJ cannot charge a sitting President.
            Yes the jury would let the old guy go after his pathetic deposition. God forbid he testify

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      2. Avatar photo
        Aylene Wright

        I have been taking a mental health break from TD commenting for a while, but... I saw your name in the Axios article, and immediately checked this comment section to see if you had mentioned it here.

        Thanks, as always, for the transparency. Both from you and TD as an institution.

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        1. Russell J

          You have thought-provoking comments. Enjoy the break though.

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      3. Avatar photo
        David.Cann1

        Thanks, Sarah. I feel defensive toward you when the bastards are slamming you on Twitter. Happy to be a subscriber here.

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        Stephanie

        Thanks for clarifying, Sarah.

        I'm relieved!

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  5. SamCOS

    I want to come here to say something that is on my mind after every episode: thank you!
    This episode is a great example of why I subscribe to the podcast (as a non-lawyer). The clarity of explanation and going beyond the headlines or tweets in each episode is so great.

    Most of the time (not all) Sarah and David are able to explain these legal issues in a way that I (decently enough educated) can follow.

    So again THANK YOU!

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  6. Avatar photo
    Michael Berkowitz

    One of my first interactions with AO (what can I say? I'm an interactor) was back at the beginning, four years ago, when Ms. Isgur was kind enough to answer some of my questions about public accommodations. I had already been thinking for years how weird it is for the government to force a person to offer service that he doesn't want to in his own business. Rather than reconstructing my thinking, here's a letter I wrote to a different news site a couple of years back (I should perhaps mention that the language, while civil, is blunt):

    𝘏𝘢𝘭𝘧-𝘢-𝘤𝘦𝘯𝘵𝘶𝘳𝘺 𝘰𝘧 𝘱𝘶𝘣𝘭𝘪𝘤-𝘢𝘤𝘤𝘰𝘮𝘮𝘰𝘥𝘢𝘵𝘪𝘰𝘯 𝘭𝘢𝘸 𝘩𝘢s 𝘨𝘰𝘵𝘵𝘦𝘯 𝘶𝘴 𝘶𝘴𝘦𝘥 𝘵𝘰 𝘵𝘩𝘦 𝘪𝘥𝘦𝘢 𝘵𝘩𝘢𝘵 𝘪𝘵 𝘮𝘢𝘬𝘦𝘴 𝘴𝘦𝘯𝘴𝘦, 𝘸𝘩𝘦𝘯 𝘪𝘯 𝘧𝘢𝘤𝘵 𝘪𝘵’𝘴 𝘢𝘯 𝘢𝘣𝘦𝘳𝘳𝘢𝘵𝘪𝘰𝘯 𝘮𝘢𝘥𝘦 𝘵𝘰 𝘮𝘦𝘦𝘵 𝘢𝘯 𝘦𝘹𝘵𝘳𝘦𝘮𝘦 𝘴𝘪𝘵𝘶𝘢𝘵𝘪𝘰𝘯. 𝘈𝘧𝘵𝘦𝘳 𝘢𝘭𝘭, 𝘪𝘧 𝘵𝘩𝘦 𝘴𝘵𝘢𝘵𝘦 𝘤𝘢𝘯 𝘧𝘰𝘳𝘤𝘦 𝘺𝘰𝘶 𝘵𝘰 𝘴𝘦𝘳𝘷𝘦 𝘢 𝘣𝘭𝘢𝘤𝘬 𝘮𝘢𝘯 𝘢𝘵 𝘺𝘰𝘶𝘳 𝘭𝘶𝘯𝘤𝘩𝘦𝘰𝘯𝘦𝘵𝘵𝘦, 𝘸𝘩𝘺 𝘤𝘢𝘯’𝘵 𝘪𝘵 𝘧𝘰𝘳𝘤𝘦 𝘺𝘰𝘶 𝘵𝘰 𝘪𝘯𝘷𝘪𝘵𝘦 𝘩𝘪𝘮 𝘵𝘰 𝘺𝘰𝘶𝘳 𝘱𝘰𝘰𝘭 𝘱𝘢𝘳𝘵𝘺 𝘢𝘭𝘰𝘯𝘨 𝘸𝘪𝘵𝘩 𝘢𝘭𝘭 𝘺𝘰𝘶𝘳 𝘸𝘩𝘪𝘵𝘦 𝘯𝘦𝘪𝘨𝘩𝘣𝘰𝘳𝘴? 𝘐’𝘷𝘦 𝘳𝘦𝘢𝘥 𝘪𝘯 𝘣𝘰𝘵𝘩 𝘛𝘩𝘰𝘮𝘢𝘴 𝘚𝘰𝘸𝘦𝘭𝘭 𝘢𝘯𝘥 𝘊𝘩𝘳𝘪𝘴𝘵𝘰𝘱𝘩𝘦𝘳 𝘊𝘢𝘭𝘥𝘸𝘦𝘭𝘭 𝘵𝘩𝘢𝘵 𝘵𝘩𝘦 𝘭𝘰𝘣𝘣𝘺𝘪𝘯𝘨 𝘧𝘰𝘳 𝘵𝘩𝘦 𝘊𝘪𝘷𝘪𝘭 𝘙𝘪𝘨𝘩𝘵𝘴 𝘈𝘤𝘵 𝘰𝘧 1964 𝘦𝘹𝘱𝘭𝘪𝘤𝘪𝘵𝘭𝘺 𝘢𝘣𝘫𝘶𝘳𝘦𝘥 𝘪𝘵𝘴 𝘢𝘱𝘱𝘭𝘪𝘤𝘢𝘵𝘪𝘰𝘯 𝘵𝘰 𝘱𝘳𝘪𝘷𝘢𝘵𝘦 𝘣𝘶𝘴𝘪𝘯𝘦𝘴𝘴𝘦𝘴; 𝘪𝘵 𝘸𝘢𝘴 𝘰𝘯𝘭𝘺 𝘢𝘧𝘵𝘦𝘳 𝘪𝘵 𝘱𝘢𝘴𝘴𝘦𝘥 𝘵𝘩𝘢𝘵 𝘤𝘰𝘶𝘳𝘵𝘴 𝘥𝘦𝘤𝘪𝘥𝘦𝘥 𝘵𝘰 𝘢𝘱𝘱𝘭𝘺 𝘪𝘵 𝘵𝘩𝘦𝘳𝘦.

    (It may be worth pointing out that I think it was the right thing to do under the circumstances, for all that I have issues with it now.)

    More in Common 𝘴𝘶𝘳𝘷𝘦𝘺𝘴 𝘴𝘩𝘰𝘸 𝘵𝘩𝘢𝘵 𝘱𝘳𝘰𝘨𝘳𝘦𝘴𝘴𝘪𝘷𝘦𝘴 𝘩𝘢𝘷𝘦 𝘢 𝘸𝘪𝘭𝘥𝘭𝘺 𝘪𝘯𝘧𝘭𝘢𝘵𝘦𝘥 𝘦𝘴𝘵𝘪𝘮𝘢𝘵𝘦 𝘰𝘧 𝘳𝘢𝘤𝘪𝘴𝘮’𝘴 𝘱𝘰𝘱𝘶𝘭𝘢𝘳𝘪𝘵𝘺 𝘪𝘯 𝘈𝘮𝘦𝘳𝘪𝘤𝘢 (𝘤𝘰𝘯𝘴𝘦𝘳𝘷𝘢𝘵𝘪𝘷𝘦𝘴 𝘩𝘢𝘷𝘦 𝘵𝘩𝘦𝘪𝘳 𝘰𝘸𝘯 𝘸𝘪𝘭𝘥𝘭𝘺 𝘪𝘯𝘧𝘭𝘢𝘵𝘦𝘥 𝘦𝘴𝘵𝘪𝘮𝘢𝘵𝘦𝘴 𝘢𝘣𝘰𝘶𝘵 𝘰𝘱𝘪𝘯𝘪𝘰𝘯𝘴 𝘩𝘦𝘭𝘥 𝘣𝘺 𝘱𝘳𝘰𝘨𝘳𝘦𝘴𝘴𝘪𝘷𝘦𝘴), 𝘴𝘰 𝘐 𝘴𝘶𝘱𝘱𝘰𝘴𝘦 𝘰𝘯𝘦 𝘤𝘢𝘯 𝘢𝘤𝘤𝘰𝘶𝘯𝘵 𝘧𝘰𝘳 𝘵𝘩𝘦𝘪𝘳 𝘧𝘦𝘢𝘳 𝘵𝘩𝘢𝘵 𝘸𝘪𝘵𝘩𝘰𝘶𝘵 𝘱𝘶𝘣𝘭𝘪𝘤-𝘢𝘤𝘤𝘰𝘮𝘮𝘰𝘥𝘢𝘵𝘪𝘰𝘯 𝘭𝘢𝘸 𝘸𝘦’𝘥 𝘣𝘦 𝘣𝘢𝘤𝘬 𝘵𝘰 𝘣𝘭𝘢𝘤𝘬𝘴 𝘪𝘯 𝘵𝘩𝘦 𝘣𝘢𝘤𝘬 𝘰𝘧 𝘵𝘩𝘦 𝘣𝘶𝘴 𝘰𝘳 𝘶𝘯𝘢𝘣𝘭𝘦 𝘵𝘰 𝘣𝘶𝘺 𝘢 𝘴𝘢𝘯𝘥𝘸𝘪𝘤𝘩 𝘰𝘳 𝘢 𝘴𝘶𝘪𝘵, 𝘣𝘶𝘵 𝘢𝘴 𝘵𝘩𝘰𝘴𝘦 𝘴𝘶𝘳𝘷𝘦𝘺𝘴 𝘴𝘩𝘰𝘸, 𝘵𝘩𝘦𝘳𝘦’𝘴 𝘯𝘰 𝘢𝘤𝘵𝘶𝘢𝘭 𝘢𝘱𝘱𝘦𝘵𝘪𝘵𝘦 𝘧𝘰𝘳 𝘴𝘶𝘤𝘩 𝘢 𝘵𝘩𝘪𝘯𝘨. 𝘞𝘩𝘢𝘵 𝘸𝘦’𝘳𝘦 𝘭𝘦𝘧𝘵 𝘸𝘪𝘵𝘩 𝘪𝘴 𝘢 𝘭𝘦𝘨𝘢𝘭 𝘳𝘦𝘨𝘪𝘮𝘦 𝘵𝘩𝘢𝘵 𝘯𝘰𝘵 𝘰𝘯𝘭𝘺 𝘪𝘮𝘱𝘰𝘴𝘦𝘴 𝘨𝘰𝘷𝘦𝘳𝘯𝘮𝘦𝘯𝘵 𝘸𝘪𝘭𝘭 𝘰𝘯 𝘸𝘩𝘢𝘵 𝘴𝘩𝘰𝘶𝘭𝘥 𝘣𝘦 𝘱𝘳𝘪𝘷𝘢𝘵𝘦 𝘣𝘦𝘩𝘢𝘷𝘪𝘰𝘳, 𝘪𝘵’𝘴 𝘢𝘤𝘵𝘶𝘢𝘭𝘭𝘺 𝘵𝘩𝘦 cause 𝘰𝘧 𝘮𝘢𝘯𝘺 𝘰𝘧 𝘰𝘶𝘳 𝘤𝘶𝘭𝘵𝘶𝘳𝘦-𝘸𝘢𝘳 𝘣𝘢𝘵𝘵𝘭𝘦𝘴. 𝘑𝘶𝘴𝘵 𝘭𝘰𝘰𝘬 𝘢𝘵 𝘢𝘭𝘭 𝘵𝘩𝘦 𝘚𝘊𝘖𝘛𝘜𝘚 𝘤𝘢𝘴𝘦𝘴 𝘢𝘳𝘰𝘶𝘯𝘥 𝘵𝘳𝘺𝘪𝘯𝘨 𝘵𝘰 𝘧𝘰𝘳𝘤𝘦 𝘳𝘦𝘭𝘪𝘨𝘪𝘰𝘶𝘴 𝘱𝘦𝘰𝘱𝘭𝘦 𝘰𝘳 𝘰𝘳𝘨𝘢𝘯𝘪𝘻𝘢𝘵𝘪𝘰𝘯𝘴 𝘵𝘰 𝘵𝘰𝘦 𝘵𝘩𝘦 𝘱𝘳𝘰𝘨𝘳𝘦𝘴𝘴𝘪𝘷𝘦 𝘭𝘪𝘯𝘦 𝘰𝘯 𝘴𝘦𝘹𝘶𝘢𝘭𝘪𝘵𝘺.

    𝘐𝘴 𝘵𝘩𝘦𝘳𝘦 𝘢 “𝘤𝘰𝘮𝘱𝘦𝘭𝘭𝘪𝘯𝘨 𝘴𝘵𝘢𝘵𝘦 𝘪𝘯𝘵𝘦𝘳𝘦𝘴𝘵” 𝘪𝘯 𝘴𝘩𝘪𝘦𝘭𝘥𝘪𝘯𝘨 𝘨𝘢𝘺𝘴 𝘧𝘳𝘰𝘮 𝘵𝘩𝘦 𝘬𝘯𝘰𝘸𝘭𝘦𝘥𝘨𝘦 𝘵𝘩𝘢𝘵 𝘵𝘩𝘦𝘳𝘦 𝘢𝘳𝘦 𝘤𝘪𝘵𝘪𝘻𝘦𝘯𝘴 𝘸𝘩𝘰 𝘥𝘪𝘴𝘢𝘱𝘱𝘳𝘰𝘷𝘦 𝘰𝘧 𝘵𝘩𝘦𝘪𝘳 𝘴𝘦𝘹𝘶𝘢𝘭 𝘢𝘤𝘵𝘪𝘷𝘪𝘵𝘺 (𝘢𝘴 𝘪𝘧 𝘵𝘩𝘢𝘵’𝘴 𝘳𝘦𝘢𝘭𝘭𝘺 𝘣𝘦𝘪𝘯𝘨 𝘩𝘪𝘥𝘥𝘦𝘯 𝘧𝘳𝘰𝘮 𝘵𝘩𝘦𝘮)? 𝘛𝘩𝘦 𝘪𝘯𝘵𝘦𝘳𝘦𝘴𝘵 𝘪𝘴 𝘳𝘢𝘵𝘩𝘦𝘳 𝘪𝘯 𝘱𝘳𝘦𝘷𝘦𝘯𝘵𝘪𝘯𝘨 𝘱𝘦𝘰𝘱𝘭𝘦 𝘧𝘳𝘰𝘮 𝘶𝘴𝘪𝘯𝘨 𝘵𝘩𝘦 𝘴𝘵𝘢𝘵𝘦 𝘵𝘰 𝘣𝘭𝘶𝘥𝘨𝘦𝘰𝘯 𝘵𝘩𝘦𝘪𝘳 𝘤𝘶𝘭𝘵𝘶𝘳𝘦-𝘸𝘢𝘳 𝘰𝘱𝘱𝘰𝘯𝘦𝘯𝘵𝘴 𝘪𝘯𝘵𝘰 𝘴𝘶𝘣𝘮𝘪𝘴𝘴𝘪𝘰𝘯.

    I used particulars from history and the news, but in case anyone has doubts, I'm absolutely okay with it being legal for someone to refuse me service because I'm Jewish. He'll be off my Christmas list, for sure, and I might deign to give him a piece of my mind, but I don't think I should be able to call the cops.

    Mr. French is concerned that, what with the seeming increase in ambient anger and intolerance, now might be a bad time to ease off on public accommodation law, but to me it seems more likely that forcing people to grit their teeth and act nice just makes them angrier. Add to that the fact that, what with trust in government being so low, giving it the authority to "make us better people" seems like a particularly contentious thing to do.

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    1. Michael M

      Wow that’s a sad worldview.

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        Michael Berkowitz

        I had expected to be told that I was too optimistic about our ability to do without these laws and not descend back into Jim Crow. How do you find that sad?

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        1. Michael M

          Have you been awake for any of the last 50/20/10/5/2 years?

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            Michael Berkowitz

            65, actually, so I guess our assessments of the situations have been different. If you can be more specific, we can perhaps pin the difference down.

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        PaulH

        Wow, that is a sad post -- you really don't have anything to say, do you?

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        1. Michael M

          Not to you.

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            PaulH

            Or to the OP or to this section -- you just get off on being rude.

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      PaulH

      I agree that they idea of expanding public accommodation laws to include people with different political opinions is likely to backfire. It will not actually make anyone more tolerant of others; instead people will look for instances where they may have been discriminated against in order to litigate against those who they disagree with.

      From a libertarian perspective, I dislike public accommodation laws; but as they originated in a context where the states had been enforcing discrimination for many years and there was social pressure to maintain discrimination, the public accommodation laws were probably necessary.

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        Michael Berkowitz

        As I wrote, I agree that they were probably necessary. Even as great an instrument as the US Constitution isn't always up to the task at hand. Violating it should be done only under extreme circumstances and only posterity will judge whether you were a hero or a villain. In this case I think it worked out rather well, and now that the emergency is past, we should dispense with it.

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      2. SamCOS

        Having grown up in the South not that long after "Whites Only" signs had been present (and one could still see the raised lettering that had been painted over in some places) and having a libertarian bent, I share your squeamishness toward public accommodation laws. However, I also knew the grandad of a friend who owned a restaurant and wanted to serve Blacks but feared for his life if he did. Once such laws were in place, he told KKK people (who came in) that he HAD to serve Blacks.

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          Michael Berkowitz

          I agree. See my previous comment.

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  7. CCA

    https://www.nbcnews.com/politics/justice-department/biden-attacked-hur-asking-beau-died-didnt-happen-sources-say-rcna138709

    This article appears to answer the question posed below fairly well..... carrying on....

    Question for Sarah: On the subject of the line about Biden forgetting when his son died, how much does the context of the inclusion of that one line matter with respect to assessing whether it was "too far?" Here's why I ask...

    Scenario 1: Hur never asks Biden the date of his son's death. Instead, Biden, while attempting to sort out the various dates of his VP service, on his own, misstates when his son died and there is at least some discussion/floundering by Biden that is part of the evidence that his memory is poor. Hur's inclusion of the line is meant to serve as an example of Biden's poor memory - as observed by Hur, but not prompted by Hur. In other words, the confusion was not caused or even prompted by Hur. He only included it as an observation.

    Scenario 2: Biden is questioned about dates of service and other major life events and fails to recall dates correctly. In other words, Biden is being quizzed to test his memory specifically to determine whether he will make a good or bad witness for himself. Hur then includes the result of some of that quizzing in the report to support his contention that Biden's poor memory makes him a sympathetic soul who would be difficult to get a jury to convict.

    Scenario 3: While trying to determine a "chain of custody" so to speak, of classified documents, different "major" moments in his life are used as "markers" either by Biden himself or more likely by those questioning him to establish when he had access to classified documents and/or relocated them. One memoir he penned with a ghost writer was "Promise Me, Dad" published in 2017, but "started" after he decided not to run for President in 2015 following Beau's death. So, the question of Beau's death, which was tied to a decision not to run, but also occurred while he was still VP, was relevant in the chain of custody inquiry. Hur's inclusion of the line in the report was therefore part of a relevant inquiry, and the confusion over the timeframe deemed relevant to the decisions made.

    Assuming you still think it's one comment "too far" is one of these scenarios more justifiable than the others? Or are there other legitimate reasons to include it in the report?

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  8. Josh.Evron

    I love this podcast. I am a non-lawyer and learn so much from every episode. You guys are the best!

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  9. Austin from Atlanta

    It is amazing that even in the face of such quality analysis from Sarah & David, you can still find commenters below fabricating unspecific claims to justify their priors. Who's to say Hur doesn't want to prosecute primarily because of how a jury would view Biden (other than Hur repeatedly of course)? Maybe Hur needed to include the details he did, but it's the WAY he did it (a way I find unflattering).

    What a pure representation of the limits of persuasion.

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  10. Gsalas72

    The bigger problem is that Barr set the bar for disclosing a Special Counsel's report.
    Keep the report under wraps, give a completely editorialized interview, and scream "complete exoneration" for weeks before releasing the actual document - which didn't exonerate at all.
    Dems expected Garland to do the same.

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      PaulH

      Barr was unable to release the full report initially because it contained grand jury information. But knowing the importance of it, he issued an accurate summary of what its conclusions were as soon as possible (which included Mueller's statement that the report did not exonerate Trump). He did not scream "complete exoneration" at all -- though the report did conclude that there was not evidence establishing that Trump had colluded with Russia. Yes, people were very upset with Barr, but that was a case of shooting the messenger. They were just upset that a conspiracy theory they had been indulging in for so long had been disproven. Barr acted entirely appropriately (as did Garland).

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      1. Michael M

        Mmm hmmm. Keep telling yourself that.

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          PaulH

          uuumm, why did you bother to post? Rude posts like yours add nothing to this board. And, they suggest that you really have nothing to add to the conversation. If you can't respond intelligently and politely to an intelligent and polite post, that reflects on you.

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            PaulH

            Yep, you prove my point.

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