LIVE: Special Counsel Hur Testifies to House Committee on Biden’s Handling of Classified Material 2024-03-12 18:40

See we have former colleague of ours Mr. Bratt from the great state of Virginia. Welcome to the committee Mr. Herb, we will now go to a Gentleman from Maryland for five minutes. Mr. Ivey. Thank you. Mr. Chairman and mr. Herb appreciate you coming in today I did want to deal with one preliminary matter, which is the issue of the release of the transcript I've heard complaints from my Republican colleagues White House only releasing the transcript from the Biden interview this this morning But I have to know that there are I think over 90 transcripts that are being held By the majority here at the Judiciary Committee and Oversight Committee for interviews that we all care about they all go directly to issues with respect to the alleged impeachment inquiry You know, it's kind of the pot calling the kettle black it seems to me as an understatement so I and I noted to that When the ranking member requested the majority release the transcripts the chairman objected so I hope that we can Move forward in the mode of cooperation and sharing information. I think it's just reasonable to do Mr. Herr, I wanted to thank you again for the work you did I don't agree with everything you wrote in the report, but that's the nature of the business I think but I did want to ask you about this. I know you started off with In the first line executive summary, we conclude that no criminal charges are warranted in this matter and I take it that's still your position today Yes, it is. All right, you Also noted a little bit below that For the reason summarized below we conclude that the evidence does not establish. Mr Biden's guilt beyond a reasonable doubt you still share that still hold that view I do Okay, and even though you objected to the use of the word exonerated He's from your perspective he's been cleared of all criminal charges in your investigation, is that fair? I determined that based on the evidence criminal charges are not warranted okay, and I did want to Go to the issue of material distinctions that you raised in in your report between President Biden and former President Trump We've got a document up here that lays some of it out and you've asked answered some questions about this already but You know, I think it's it seemed to be highly relevant in your analysis that President Biden cooperated And I wanted to walk through a couple of those points One is that he turned in classified documents to the National Archives and to the Department of Justice Upon request is that fair? That was a factor that we considered. Yes, Congressman. All right, he cooperated with your investigation. Yes Consented to the search of multiple locations including his house, correct Sat for a voluntary interview. Yes, and that was five hours over two days a little over five hours over two days, okay Turned over and allowed investigators to review handwritten notebooks. He believed to be his personal property, correct now with respect to the comparison with former President Trump And I believe this is on page 11 which is still in your executive summary And I'll just read part of this to you unlike the evidence involving mr Biden the allegation set forth in the indictment of mr. Trump have proven would present serious aggravating facts Most notably after being given multiple chances to return Classified documents and avoid prosecution. Mr. Trump allegedly did the opposite according to the indictment He not only refused to return the documents for many months But he also obstructed justice by enlisting others to destroy evidence and then to lie about it 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 his Investigation that's from page 11 of your report. I see that language on page 11 All right, and you still stand by that language? I do sir. Okay And this is you you this is your report you take full Responsibility for everything that's in the document. I do I stand by every word in it. All right. All right Wanted to ask you a couple of questions one is with respect to The surprising line of questions you got right before we broke about guardianship Which seems to me like a dramatic stretch of the Anything that was remotely involved in your report. Did you raise any kind of issues about mr. Biden needing? guardianship or anything along those lines Nothing related to guardianship appeared in my report. Okay, and so the I guess you made the one point about Him being an elderly man with poor memory But are you saying you did you say anywhere in your report that you thought not only would he be unfit to handle his own? Finances, but he'd be unfit for public office My report did not include any opinions on those issues. Okay. I see my time is exhausted But thank you again for your testimony. I appreciate your efforts gentlemen. He was back gentlemen, Virginia's recognized Yield to the chairman briefing. I think jump for you. Let me just point out. Mr. I'd be raised the issue of transcripts He has complete access to every transcript that we have done in the congressional investigation You can go he could show up for all the deposition class show up for most of those So he has complete access to that what we don't have is access to the transcripts of all the witnesses We only have mr. Biden and we don't have access to the audio tapes of all the witnesses Well, will the gentleman yield it's not my time. I yield back to the gentleman from Virginia. You're speaking, but it's not your time It's my time I thank the gentleman Special counsel her thank you for being here Your story is an impressive one. Your achievements are impressive as well. You've been a prosecutor for many years, correct? Yes, sir I was not a prosecutor for More than a couple of years, but I still remember my record in jury trials. Do you remember your record? It'll take me a little time to reconstruct but I think I could get there. Is it above 500? It is above 500. Yes. Okay. Well, I'm curious because The evidence that you outlined in your report is pretty significant When it comes to evidence that after his vice presidency and I'm reading from your report, mr Biden willfully retained marked classified documents about Afghanistan and unmarked classified handwritten notes in his notebooks both of which he stored in unsecured places in his home Further you noted that there's evidence that he willfully retained the classified Afghanistan documents including the Thanksgiving memo and had a strong motive to keep Such classified documents you outline what that motive is. Can you tell me? What is the motive for keeping the Thanksgiving Day memo One of the motives that we addressed in the report was that the issue of whether or not a troop Surge should be sent to Afghanistan in 2009 was a hotly contested and debated issue within the Obama administration back in 2009 and one in which But then vice president Biden had a significant role and he felt very strongly about Quote from your report President Biden believed President Obama's 2009 troop surge was a mistake on par with Vietnam and wanted the record to show that he was right about Afghanistan that his critics were wrong and that he had opposed President Obama's mistaken decision Forcefully when it was made that his judgment was sound when it mattered most does that sound correct that language sounds familiar from the report? Yes, okay That is is pretty significant in terms of a Motivating factor for retaining those documents wouldn't you say that would be a factor that a jury would assess in considering whether or not? Mr. Biden had criminal intent and I also know that President Biden was working with a ghostwriter on a book Mark Swanacre correct, correct and your investigation concluded when President Biden began work on his memoir, correct When did at what time did your investigation conclude with respect to the the second book published in 2017? We identified evidence that mr. Biden began recorded conversations with mr. Swanitzer in 2016 before the end of mr. Biden's vice presidents and it's your understanding that while mr. Swanacre interviewed president Biden he read classified information from his notebooks nearly verbatim sometimes for an hour or more at a time, correct? Correct and was mr. Swanacre authorized to receive this classified information? He was not and in fact in their February 16th meeting Which has been alluded to earlier. Isn't it true that President Biden read aloud and nearly verbatim? Classified act information regarding the actions and views of US military leaders and the CIA director relating to the foreign country and foreign terrorist organization I believe that occurred that was captured in a recording later in 2017. I believe in April of 2017 not February Okay, and mr. Swanacre became aware of your special your appointment of special counsel, correct? At some point mr. Swanacre did become aware of my appointment. Yes, and on learning of the investigation Mr. Swanacre deleted digital audio recordings of his conversations with mr. Biden during the writing of the book promise me dad, correct Did investigate and investigators with your office interviewed? Mr. Swanacre about the deleted recordings and he admitted that Part of his motivation for deleting this recording was because he was aware. There was investigation, correct, correct and Did this conduct raise concerns with your office? It did we consider it to be significant evidence that we needed to follow up on Significant evidence and I would argue that you also had significant evidence surrounding The retention of these documents The retention of these documents the storage of these documents and even though there was a a bit of a disconnect between What a reasonable juror could conclude The intent was there and the motive was there for the book for exoneration And I would argue that you had enough to move forward. My time has expired. I yield back Gentlelady from vermont is recognized for five minutes. Thank you. Mr. Chair, and thank you special counsel her for being here today I know it's been hours and hours and I really appreciate you staying to the better end here And I think it speaks to uh, the possibility and promise afforded By this nation that you as a child of immigrants sit here as special counsel And I as a child of an immigrant sit here as a member of congress There is a lot that's been said today and brought to light There is a lot that's been said today and part of the challenge that I have is trying to translate this for my constituents back home And so I want to start with um sort of the top line So you were tasked with identifying whether criminal conduct occurred regarding classified documents And after over a year of investigation including 150 witness interviews and over 7 million documents reviewed You wrote in the first sentences of the executive summary quote we conclude That no criminal charges are warranted in this matter We would reach the same conclusion Even if department of justice policy did not foreclose criminal charges against a sitting president Were those were those your words? Yes. Thank you so Let's get into it Mr. Herr at any time did DOJ leadership or the attorney general attempt to influence the outcome of your investigation? No Do you believe it's important that the special counsel investigations or any DOJ investigation be impartial and free of influence from political actors? Yes. Do you believe you were independent and thorough in your report? Yes Do you believe uh, do you think it's true that you received no pressure? From attorney general garland in this matter. That's correct. Is it true that you had all of the resources that you needed? enabled for you to conduct your interviews to conduct your um Investigation and to complete your report. Yes Is it true that you recommended that the attorney general decline to charge president biden? I submitted a report to the attorney general Explaining my decision that criminal charges were not warranted in this matter, right? So you said on page one of the report quote, we conclude that the evidence does not establish. Mr Biden's guilt beyond a reasonable doubt Is it true that your report ultimately concluded that the evidence did not support a finding beyond a reasonable doubt that president biden willfully retained? Classified materials. Yes Is it true that president biden cooperated with your investigation? Yes Is it true that president biden sat for an interview with you the day after the october 7th attacks in israel in the midst of an international crisis He sat for interviews over two days october 8th and october 9th. Thank you Is it true that the that president biden allowed the fbi to conduct thorough searches of his home? And his beach house. Yes Is it true that your report found multiple possible innocent explanations as to why the classified documents ended up where they did? As part of our analysis we walked through a number of different Explanations that defense council would present could present a trial if this case were charged And as you said on page six of your report quote in addition to this shortage of evidence There are other innocent explanations for the documents that we cannot refute Your report I see that language. Yes. Thank you. Uh, your report reads with one exception There is no record of the department of justice prosecuting a former president or vice president for mishandling classified documents from his own administration The exception is former president trump. Am I reading that correctly? Yes, is it true? Or is it correct that your report recommends no charges and that you would be Uh, that would be the case even if he were not a sitting president correct So what we've had today Is hour after hour after hour of trying to distract us from the clear statements that come through this report And you yourself have said multiple times today There was no attempt to obstruct justice by the president By the department of justice by the attorney general that you had all the resources that you needed to conduct a fair and thorough Investigation and report and that what you concluded Was in fact the evidence was not sufficient To bring charges against the president for mishandling documents. I thank you for being here today. I yield back Gentlelady yields back the gentleman from south carolina is recognized Mr. Chairman, I yield to you such time as you may consume sir. I appreciate the gentleman yielding. Uh, mr Herr, why did why did the white house go? Why'd the white house lawyers go look in the first place? My understanding is they went to the penn biden center Why'd they go look in the first place? I mean look for classified, you know mishandling class but look for classified documents. Why'd they do? What we identified through our investigation was that? at a certain date members of The president's staff went to the penn biden center in order to get a better handle on what the information What kinds of evidence and what kinds of materials were at the penn biden center? Were they specifically looking for potential documents that were classified or was it a broader initial look? My understanding is that it was a broader initial look and i'm looking at chapter 14 page 257 of my report about a visit in march 2021 and biden center okay uh in march In march of 2021 was this after the uh, justice department began their investigation into president trump? I confess I don't have the date of the beginning of the investigation into president trump at hand I believe it was the same month. I mean, I believe it was after uh, so I was just just just curious to that now One other thing I think is important for folks to understand is president biden had this information everywhere You said they initially went to the penn biden center, which location was it at? Do you remember when they initially did their look was it at the transition office? Was it at the temporary penn biden center in chinatown or was that at its current location? Where the penn biden centers, uh currently sits here in uh, or you know final location, I guess in dc You remember I believe the visit that I referenced in march 2021 that's described on page 257 was to the penn biden Penn biden center's a permanent and current location permanent and current. So there were three places those three places Classified information was at is that fair to say? That's correct The initial transition office immediately after the end of the vice presidency the penn biden center's temporary office And then the penn biden center's permanent office. Okay, so those and then you had the university of delaware library The university of delaware biden center, right? So that's five total and then you had multiple places in his home, correct the garage The den the office upstairs and the office downstairs Correct. So what is that? That's like nine different places I've lost count sir, but exactly It's everywhere and it was documents over a 50-year time frame And then by comparison because the democrats want to keep comparing to president president trump's Classified document right his home with secret service protection. I don't know that they're anywhere else were they I i'm not aware of other locations. Yeah, I think I think that's important distinction I would yield back to the gentleman for south carolina. Appreciate him yielding Thank you. Chairman. Um briefly, I know we've got two minutes left, but Um, mr. Herr, how would you define willful? With respect to the the intent um of willfulness What a jury has to conclude is that someone knew that their conduct was illegal when they engaged in that kind, right? It's intentional right? It's not by accident. It's not accidental or involuntary, correct? Okay, so so here's where I disagree with your portion of the report on willful is that you have a gentleman who serves 36 years in the senate i've only been here a year, but I understand the the importance of handling classified information He served eight years as vice president in 2010 It came to the attention of the vice president's staff that classified briefing books had not been returned Even even if they were they were returned some of the content was missing the same year the executive secretary Raised that nearly 30 of the classified briefing books from the first six months of 2010 Were missing in august of that year then vice president biden failed to return top secret sensitive compartment Compartmented information contents of a classified briefing book from a trip that he took to the hamptons and to date You were unable to determine if these documents were ever recovered. Is that correct? Correct? so so to me this wasn't when does willfulness as a as a When does willfulness factor in is it now in his diminished mental capacity or is it then when he was serving as senator and vice president? A jury would be assessing President biden's mental state and his Intent or whether or not he had willfulness at the time that the conduct was committed, correct? and I think everyone can kind of plainly see that the the transgression or the the Difference between then candidate biden or vice president biden and what is going on now And so this is where I I go to it as the chairman talked about in his opening comments He had eight million reasons to to hold these documents. In fact, he disclosed some of this information to His ghostwriter and so I think that there could have been willfulness and I think you know, I've got 10 seconds left But look since 2016 there have been three candidates to run for president all three have had allegations of Issues surrounding the retention and holding of classified documents, but mr Herr only one of them has been charged and that's president trump and that's why people think And view this as a two-tiered system of justice. Thank you, sir Gentlemen yields back Uh, the chair now recognizes the gentleman from uh You have unanimous consent, yeah, i'll wait Gentleman from colorado, mr. Buck. Thank you. Mr. Herr. They say they save the best for last. So i'm looking forward to this opportunity First of all What i've observed in this hearing is that one side thinks you're trying to get president trump elected and the other side thinks you're trying To get president biden elected I served as a prosecutor for 25 years I know that you're going to take grief from both sides You must be doing a great job in your report and during your investigation If you have convinced both sides that you are somewhere in the middle I uh I commend you for your um your background I would have loved to have met Chief justice rehnquist. Um, what a what a hero to conservatives and and really, uh americans And that must have been a great opportunity for you Um, but when both sides attack you my my Admonition is uh, welcome to congress how many uh I I do have a question. Um, and it goes along the lines of what mr. Armstrong and mr Fry were asking you earlier. I'm really confused about uh willfulness And in your your view of willfulness, it's it's clear to me that that Uh at the time vice president biden, uh knew he had classified documents he told his uh After he left the vice presidency. He told his biographer, um, uh ghost writer Those classified documents were in the basement So he had the mental state that he had classified documents He also knew that his basement was not a skiff. It is not a secure area. Um, and so Uh at the point if at that point in time he said oh my gosh, i've got to call the archivist i've got to call uh Secret service somebody and get these documents taken away. Perhaps he has this defense of of acting as as quickly as He knew about the documents, but I don't see where the willfulness is missing When he had those two the elements pretty clear, uh, he possessed classified documents Um, he held them in a non-secure, uh area and he did so knowingly he knew he had classified documents in an unsecure area What is where is the willfulness missing? well, sir, um Prosecutor prosecutor. I certainly agree with you that the evidence in the form of the audio recorded statement Where the president said it was ghost writer. I just found all the classified stuff downstairs that is evidence that That any prosecutor would would present as significant evidence in a case if this went to trial So there and reasonable jurors might well infer That that president biden formed criminal intent based on that piece of evidence But what we did in our report was to try to walk through exhaustively, you know, you know Well as a prosecutor you need to assess with a very cold eye The strengths of your case and the weaknesses of your case and try to anticipate arguments that defense counsel might well present at trial And what we tried to do in our report would be was to walk through Potential arguments that would be presented by defense lawyers at the president's trial And to determine how by our judgment how jurors would receive and perceive the evidence presented including including but not limited to evidence relating to the president's memory gaps That were in various pieces of evidence that we assessed So, how do you overcome that recording where he says i've got classified documents He's 30 years in the senate or whatever it is. He obviously knows how he has to treat classified documents I've got classified documents in in the basement what is the defense to that that it was a made-up recording that that it wasn't his voice that Uh, everyone was was wrong how do you defend that that particular fact as well as I did a lot of tax cases you had to prove a A pattern of conduct and in this case, you had a lot of documents in a lot of places How do you overcome those things? Yes, congressman. So we walk through a number of different evidentiary gaps that reasonable jurors might focus on As well as a number of different different defense arguments that the president's defense lawyers could president could present at trial the first is A theory or an argument to the jury that the president. Yes. He did say to his ghostwriter I just found all the classified stuff downstairs But then soon thereafter forgot about the documents and therefore it would be difficult to convince a jury That actually he willfully he knew that it was illegal to keep the documents and he continued to do so A second argument that we considered is that perhaps this these documents never actually were in virginia in his private rental home there Perhaps the documents were there By virtue of staff or or himself having those documents at the delaware home From the time that he was still vice president all the way through the time of their being discovered And and finally another theory that we walk through in the report is that there were two Folders of marked classified documents relating to afghanistan found in the box in the president's delaware garage One of them contained national defense information and the other It would be a more difficult task to persuade a jury that it did contain national defense information So that it that argument would be premised on perhaps the president was referring to The one folder that didn't contain national defense information But was not it would be difficult for the government to prove beyond a reasonable doubt that he possessed the one that did contain national defense information So I just laid a lot on you there, but we do we do our best to explain that at some length in the report Thank you. I yield back gentlemen yields, uh back chairman Gentlelady from texas recognized. I I thank you and there's been a lot of um Time being shared. Mr. Chairman. I asked you a very brief indulgence Wait, wait, wait, you got a unanimous consent or you asking a question? Your brief indulgence on unanimous consent dash questions. No, no, no, no You can you can do a unanimous consent request, but you don't get to get another round someone comes to yield you time But I don't think they can do that because everyone on the democrat side has taken their time You know what, you know that I how did you appreciate the gentlelady from texas, but you don't get to go two rounds I'm, not trying to go two rounds But let me unanimous consent request you want in the record states So if not, then we're i'm i'm getting ready to do the unanimous consent request hoping that someone would come through the door I asked unanimous consent. We could only be a republican because all the democrats have spoken. I asked unanimous consent Uh that we add to the record as stated Uh from page one of the executive summary, we conclude that no criminal charges are warranted in this matter We would reach the same conclusion even if the department of justice policy did not foreclose Unanimous that that sentence be put in secondarily. I asked unanimous consent Um and a unanimous consent to add something to the record that's already in the record. God bless you We'll do it. Thank you And I add with with the emphasis of sheila jackson lee does not have and I uh, particularly, uh ask Uh that this be added to the record that mr. Herr Stated that biden couldn't recall when his son beau died I had unanimous consent out of an article in political And indicate that there was no mercy given to mr Biden and no mercy given to him in the decision out of objection so entered mr Herd, even though there wasn't a question there. Do you want to respond to any of that? No, jimmy. All right, uh, mr. Herr. We want to thank you for being here today um And uh, we wish the best to you and your family this concludes today's hearing We thank our witnesses for appearing before the committee today without objection All members will have five legislative days to submit additional written questions for the witness or additional materials for the record without objection The hearing is adjourned