4 key questions ahead of Robert Hur’s testimony on Biden’s mishandling of classified documents

All eyes on Tuesday will be on special counsel Robert Hur, who investigated President Joe Biden’s mishandling of classified documents and delivered a political bombshell with his conclusions about Biden’s memory.

The special counsel is set to testify at the GOP-run House Judiciary Committee, where he’ll be peppered with questions about his 388-page report released last month.

After a yearlong investigation, Hur concluded that Biden mishandled classified material and improperly disclosed classified information as a private citizen. However, Hur said that there wasn’t enough evidence to prosecute Biden, and that he wouldn’t have pursued charges even if the Justice Department allowed him to indict a sitting president.

But it was Hur’s assessment of Biden’s cognitive abilities that sent shockwaves throughout Washington. He described Biden as a “well-meaning, elderly man with a poor memory” in explaining the uphill battle prosecutors might face when trying to convince a potential jury that Biden was a criminal.

CNN reported Tuesday morning that Biden told jokes and unfurled lengthy detailed stories from his decadeslong political career as he parried questions from Hur and his investigators over two days last October, a transcript of the interview reviewed by news outlets shows. The president also displayed episodes of foggy memory, including one highlighted in Hur’s final report, in which the president appeared not to remember the year that his son Beau died.

Here are four key things to look for in Tuesday’s high-stakes hearing:

What will Hur say about Biden’s age and memory?

Republicans will undoubtedly question Hur over Biden’s mental acuity after his report painted a damaging portrait of the president’s memory, which it called “significantly limited” and “hazy” at times.

According to a draft of Hur’s opening statement on Tuesday that was obtained by CNN, Hur will say that in order to explain the decision not to bring criminal charges against Biden, “I understood that my explanation about this case had to include rigorous, detailed, and thorough analysis. In other words, I needed to show my work. Just as I would expect any prosecutor to show his or her work in explaining the decision to prosecute or not.”

Regarding the decision to reference Biden’s memory in his report, Hur will say, “I had to consider the President’s memory and overall mental state, and how a jury likely would perceive his memory and mental state in a criminal trial.”

Biden and his allies have forcefully rejected the depiction of a faulty memory, but Republicans quickly seized on the report to argue he is unfit to serve – especially as they make Biden’s age a major focus of attack in the 2024 presidential race. (At 81, Biden is the oldest US president in history, though Donald Trump is only a few years younger at 77.)

In addition to calling Biden an “elderly man with a poor memory,” the report said that during the president’s interview with Hur’s office in October, Biden did not remember exactly when his son Beau died, or which years he served as vice president under Barack Obama.

A visibly seething Biden responded later, telling reporters, “I am well-meaning. And I’m an elderly man. And I know what the hell I’m doing.”

“How in the hell dare he raise that?” Biden asked of the report’s reference to Beau’s death. “I don’t need anyone to remind me when he passed away.”

White House officials and Biden’s personal lawyer called the report’s assertions about the president’s memory inappropriate and incorrect, noting the interview took place in the immediate aftermath of Hamas’ October 7 attack against Israel, and arguing that Biden was highly engaged even with everything else going on.

Some House Republicans have called for the vice president and the Cabinet to invoke the 25th Amendment to remove Biden from office in light of what Hur said about Biden’s mental fitness, arguing that the president appears unable to perform the duties of his office, though many other Republicans have not gone as far.

How does Hur differentiate Biden and Trump’s handling of classified material?

Hur will be testifying Tuesday at a congressional hearing about Biden’s mishandling of classified documents. Two days later, there will be a court hearing in Florida about Trump’s allegedly illegal mishandling of classified documents, in the Mar-a-Lago case brought by special counsel Jack Smith.

The similarities and differences between the two probes – and the fact that Trump was indicted while Biden was not – have been the subject of intense political debate and bickering in Washington. (Trump has pleaded not guilty.)

Perhaps the most potent line of attack for Democrats on Tuesday will be Hur’s own explanation for why, essentially, Trump’s behavior was worse than Biden’s. He went out of his way in his report to note the “material distinction” between the two investigations, and how Biden and Trump took different paths.

“After being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite. … In contrast, Mr. Biden turned in classified documents to the National Archives and the Department of Justice, consented to the search of multiple locations including his homes, sat for a voluntary interview, and in other ways cooperated with the investigation,” Hur wrote.

Referring to the Trump case in his opening statement, Hur will say, “there too, I called it like I saw it.”

Will Hur further lean into these differences while answering lawmakers’ questions? His tone on this, and the way he characterizes Trump’s behavior, will be closely watched, especially by Biden allies.

Still, Republicans are sure to seize on the fact that Trump was charged while Biden was not.

This feeds the narrative that Trump has put at the forefront of his campaign – the baseless accusation that the Justice Department and law enforcement are being “weaponized” against him and other conservatives. He has used this argument as a sword to attack all four of his pending criminal cases.

How will GOP tie this to impeachment?

House Republicans are looking for Hur’s public testimony to provide fresh momentum to their sputtering impeachment inquiry into Biden.

In their subpoena to the Justice Department for documents related to Hur’s probe ahead of the hearing, Republicans linked Hur’s work to their own investigation, saying they “are concerned that President Biden may have retained sensitive documents related to specific countries involving his family’s foreign business dealings.”

The Justice Department had provided the House Oversight and Judiciary committees with some of the documents that Republicans subpoenaed, but not all of them – namely the transcript and audio recordings of Biden’s interview with the special counsel, according to their letter obtained by CNN. On Tuesday, the Justice Department transferred the transcript to Congress.

According to the letter, the first tranche includes a December 2015 call sheet outlining the purpose of a call between the then-Ukrainian prime minister and then-Vice President Biden, talking points and a non-verbatim transcript of that call for lawmakers to view privately.

Republicans have sought to connect these documents to their impeachment inquiry, specifically to the false accusations that Biden abused his powers to get a top Ukrainian prosecutor fired because he was supposedly investigating a Ukrainian energy company, Burisma, which threatened the president’s son Hunter, who served on the board. These claims have been repeatedly debunked since they first emerged in 2019.

Hur’s report stated that “no jury could reasonably find that the substance of the call between Mr. Biden and the Ukrainian Prime Minister was national defense information. The two exchanged pleasantries and the Prime Minister heaped praise upon Mr. Biden for his December 9, 2015 speech to Ukraine’s parliament. They did not engage in a substantive policy discussion.”

The Justice Department also provided House Republicans with the communications between the department and the Executive Office of the President or President Biden’s personal counsel over Hur’s report. Republicans subpoenaed these documents because they claim to be concerned that restrictions were placed on Hur to stop him from looking into information that could link the president to his family’s foreign business dealings.

After 15 months, thousands of bank records, documents and more than 40 interviews with Biden family members, business associates, administration personnel, Department of Justice officials and Internal Revenue Service whistleblowers, Republicans have failed to uncover evidence to their core allegations that the president used his government powers to personally benefit financially or to serve his family’s foreign business interests.

Since Republicans reclaimed the House majority in 2023, all investigative roads had run through the president’s son. But Hunter Biden failed to provide Republicans with a smoking gun in his deposition last month and instead became the latest witness to tell Republicans the president was not involved in any of the family’s foreign business dealings.

How will Hur handle his turn in the spotlight?

Robert Hur is not a household name – this is likely the biggest moment of his career.

It appears that he participated in just one White House news conference during the Trump administration, when he was the US attorney in Maryland from April 2018 until February 2021. His delivery was strong at the White House podium, but there is a world of difference between a news conference and a congressional grilling in front of lawmakers looking for their own viral moment.

Hur will be the third special counsel to testify before the House Judiciary Committee in the past five years, and the previous two examples offer different possible strategies for Hur.

Robert Mueller testified in 2019 about the Trump-Russia investigation, and gave halting testimony in which he repeatedly dodged questions by telling lawmakers to find the answers in his report. He even declined to read aloud sections of his report when asked by Democratic lawmakers, who were hoping to solicit soundbites about Trump’s misdeeds. The hearing left many wondering whether anything was even achieved.

John Durham, who investigated the origins of the Russia probe, was more willing to offer substantive answers to lawmakers’ questions when he testified last year and was open to engaging with lawmakers. In one memorable moment, he went out of his way to defend former Attorney General Bill Barr from Trump’s public attacks, even though he could have strictly stuck to what was printed in his report.

Hur’s approach will determine how easy, or hard, it is for lawmakers to extract the political moments that they want.

By including commentary in his report about Biden’s mental state – which some legal experts and White House lawyers have said wasn’t warranted – Hur showed that he isn’t afraid to step on a political landmine. However, he’ll be forced to explain his conclusions about Biden’s feebleness just five days after the president surprised many on Capitol Hill with his fiery State of the Union performance.

This story has been updated with additional information.

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