Fact Check: Special Counsel Robert Hur Did NOT Say Biden Was Mentally Unfit To Stand Trial

Fact Check

  • by: Ed Payne
Fact Check: Special Counsel Robert Hur Did NOT Say Biden Was Mentally Unfit To Stand Trial Not In Report

Did special counsel Robert Hur say President Joe Biden was mentally unfit to stand trial? No, that's not true: There is no credible information or source suggesting that the special counsel made such a statement about the president. Instead, Hur's report stated that there was "insufficient evidence" to prove that Biden "intentionally" retained classified documents or to support bringing charges against him for doing so.

The claim appeared in a post and video (archived here) published on X by MAGA War Room on February 9, 2024, with on-screen text stating, "UNFIT TO BE PRESIDENT." The post's caption said:

According to his own Justice Department, Joe Biden is a criminal who is UNFIT to stand trial

And as far as America is concerned, he is TRAITOR who is unfit to be President.

This is what the post looked like on X, formerly Twitter, at the time of writing:


Twitter screenshot

(Source: X screenshot taken on Thu Feb 15 16:09:18 2024 UTC)

The video

This 47-second video, paid for by Make America Great Again, Inc., a political action committee affiliated with former President Donald Trump, lays out its case that Biden is "unfit to be president" and strongly suggests he is mentally unfit to stand trial, supposedly based on the findings of the special counsel's report released in February 2024. Here's a full transcript of the video:

Narrator: It's official. Joe Biden mishandled classified documents, and now his two-tiered justice system is on full display. The Department of Justice found Joe retained and disclosed classified documents, including matters of 'national security' and 'intelligence sources and methods.' He put America's national security at risk and then lied about it.

Biden: I did not share classified information. I did not share it.

Narrator: And after all that, Biden Special Counsel still declined to indict him because he was, quote, 'an elderly man' with a 'poor memory' and 'diminished faculties,' who didn't even remember when he was vice president. Joe Biden unfit to stand trial, unfit to lead America.

The report

The special counsel's findings, titled "Report on the Investigation Into Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Biden Center and the Delaware Private Residence of President Joseph R. Biden, Jr.," never spoke to Biden's fitness to stand trial or his fitness to lead the country. It only addressed why investigators chose not to prosecute a case against the president in the classified documents case.

The beginning of the report's "Executive Summary" says, "We conclude that no criminal charges are warranted in this matter" and then goes on to explain why. Throughout the full report, the investigators regularly cite "insufficient evidence" as a main reason for not pursuing charges. Additionally, the summary said:

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.

On page 384 of the report's PDF, Biden's attorneys protested this characterization of the president:

We do not believe that the report's treatment of President Biden's memory is accurate or appropriate. The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events. Such comments have no place in a Department of Justice report, particularly one that in the first paragraph announces that no criminal charges are 'warranted' and that 'the evidence does not establish Mr. Biden's guilt.' If the evidence does not establish guilt, then discussing the jury impact of President Biden's hypothetical testimony at a trial that will never occur is entirely superfluous.

Fitness to stand trial

The report never addresses Biden's "fitness to stand trial," which is a legal term with a specific meaning, as found below:

The constitutional test for competency seeks to determine whether the defendant is capable of understanding the nature and object of the proceedings, whether he comprehends his own condition in reference to such proceedings and whether he is capable of rendering his counsel assistance in providing a proper defense.

While the special counsel's report suggests Biden would be a "sympathetic" witness with a "poor memory" if he were ever to appear in a trial, nothing in the 345 pages of findings says the president would be incapable of understanding the trial's purpose, knowing his situation in the case and helping his lawyers defend him.

Read more

Additional Lead Stories fact checks of claims related to Biden and classified documents can be found here.

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  Ed Payne

Ed Payne is a staff writer at Lead Stories. He is an Emmy Award-winning journalist as part of CNN’s coverage of 9/11. Ed worked at CNN for nearly 24 years with the CNN Radio Network and CNN Digital. Most recently, he was a Digital Senior Producer for Gray Television’s Digital Content Center, the company’s digital news hub for 100+ TV stations. Ed also worked as a writer and editor for WebMD. In addition to his journalistic endeavors, Ed is the author of two children’s book series: “The Daily Rounds of a Hound” and “Vail’s Tales.” 

Read more about or contact Ed Payne

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