The report of Special Counsel Robert Hur regarding Joe Biden’s careless handling of classified senatorial and vice presidential papers takes a peculiar position: it says that despite his possessing and reading aloud to a ghostwriter top-secret documents without authorization, Biden lacked the mental acuity to have the requisite intent to mishandle documents.

Hur also muses 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.”  As evidence of this presentation likely succeeding, the special counsel says,

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[.]

Finally, the report says that “Mr. Biden is someone for whom many jurors will want to search for reasonable doubt.  It would be difficult to convince a jury they should convict him­ ... who will be at least well into his eighties — of a serious felony that requires a mental state of willfulness.”

Former president Trump is being dragged through various courtrooms because “no one is above the law.”  I worked on the Paula Jones case against Bill Clinton for the same reason.  But now we have a new impediment — that Joe Biden is below the law.  He can’t be held to a legal standard because he is incapable of meeting it.  He is non compos mentis.  

Here’s the menace in this situation: not that Biden escapes for infractions about some documents, but that Biden can now operate with impunity, which is even less principled and more dangerous than immunity.  He’s got a free pass for anything that requires mens rea because he is conveniently senile.  In fact, the older and more demented he gets, the more sequestered he is from liability.  And besides, he mustn’t be prosecuted because a jury would probably be “difficult to convince.”

Whether he is a marionette for cynics holding his strings or he is stumbling through his presidency without his mental faculties, this is a perilous time.  It’s a time for Section 4 of the 25th Amendment; Biden’s unable to discharge even lower-level “powers and duties of his office.” 

Leah Farish, J.D. is an attorney and host of the Conversation Balloons podcast on Spotify, Apple Podcasts, and Amazon Music.

Image: Gage Skidmore via Flickr, CC BY-SA 2.0.