Robert Hur testimony highlights: Special counsel grilled on Biden report

The White House reiterated its pledge to form a task force to ensure classified information is handled properly going forward after the hearing. Spokesperson Ian Sams said the Biden administration will endeavor to make sure sensitive material isn’t misplaced after presidents and vice presidents leave office.

It’s unclear who will be working on the effort, which will be rolled out in the coming months.

Hur’s attorney, Bill Burck, said in a text message that the special counsel decided to resign yesterday before his testimony because he had "completed his work."

“As was the case with prior special counsel including Robert Mueller and John Durham, Mr. Hur thought it best that he testify before Congress as a private citizen rather than a DOJ official," Burck said.

On Truth Social, Trump posted an exchange and video clip from the hearing in which Hur confirmed that Biden had classified documents at the Penn Biden Center, in his garage, in his basement and office and at the University of Delaware.

Trump is expected to attend a hearing in his own classified documents case in Florida on Thursday. His attorneys plan to argue that the indictment, in which the former president is charged with mishandling classified documents, should be thrown out.

At a briefing, White House press secretary Karine Jean-Pierre was asked whether Biden was watching Hur's testimony today.

She replied, "I cannot speak to what the president is keeping track of or watching." Asked about his reaction to the testimony, she said, "I'm not going to speak to the president's reaction."

The hearing has wrapped. Hur testified for over four hours (not including the break for votes — which made the hearing last about five hours total).

There hasn’t been a ton of new information revealed in the Hur testimony today — much of it is just putting finer points or context into what the report already revealed. There is, however, one thing that was notable and could be important going forward.

Jordan pressed Hur about whether the Justice Department or the White House should release the audio recordings of the Biden interview. Hur refused to comment on whether they should, but he volunteered that the audio recording helped to inform his decision not to charge. 

Hur wouldn’t say why, but his answer suggested that the way Biden answered his questions, beyond the actual words on paper, contributed to his decision-making process.

The committees have subpoenaed the audio recordings and are pushing to have them released. There are many reasons the White House and the Justice Department would want to be careful with the release, but Hur’s cryptic response means the pressure to get them out will continue.

Jordan said the committee will recess for a brief series of House votes and will reconvene for more questions 10 minutes after the last vote concludes.

Fun with unanimous consent requests: After Republicans tried to get Hur to commit to providing audio of his witness interviews, Nadler tried to get the GOP-led committee, which is helping lead the House's impeachment inquiry, to release audio of witness interviews it has conducted.

Jordan said three more members will ask questions now, then the committee will take a break for House floor votes, and then they'll have "a couple more" members ask questions afterward.

Hur is being grilled by Rep. Harriet Hageman, the Wyoming congresswoman who defeated Rep. Liz Cheney in the GOP primary in 2022. Hageman, who is sharply criticizing Biden in her line of questioning, was endorsed by Trump in her primary against Cheney, a vocal critic of the former president.

During a hearing this morning before the House Intelligence Committee on worldwide threats, Director of National Intelligence Avril Haines said that Biden’s classified documents in question are in the possession of the Justice Department.

NBC News has learned they are in the possession of the FBI, in a sensitive compartmented information facility (SCIF).

Rep. Madeleine Dean, D-Penn., pushes Hur to read aloud portions of his report that portray Biden positively as compared to Trump.

“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump if proven would present serious aggravating facts,” he reads.

He continued, "Most notably after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite ... 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."

"You may stop there," Dean said. "Thank you."

Rep. Barry Moore, R-Ala., told Hur that his "reputation is beyond reproach" while questioning him.

Moore asked Hur if former presidents were able to declassify documents they have in their position, to which Hur responded, "I confess, this is not an area of law that I've looked into or explained in my report, and I'm here to talk about the work that is reflected in the report."

Moore responded by telling Hur he has "a reputation beyond reproach, and I just want you to know that."

"I think that President Biden ought to be thankful that the attorney general appointed you to investigate his case," Moore added.

Hur said during an exchange with Rep. Joe Neguse, D-Colo., that Garland didn't get involved with his probe of Biden.

"Attorney General Garland did not interfere with my efforts and I was able to conduct a fair thorough and independent investigation," Hur said.

Neguse said that was much different from the Trump administration, when Attorney General William Barr took almost a month to release special counsel Robert Mueller's report to the public.

Rep. Scott Fitzgerald. R-Wis., opened his questioning by reading the Merriam-Webster Dictionary's definition of the word "senile" and asked Hur if his report found that Biden was senile.

Hur replied that "that conclusion did not appear in my report" and stated that the president's lapses in memory were only concluded to illustrate how a jury might view Biden's intent to commit a crime.

During his questioning of Hur, Rep. Tom Tiffany, R-Wis., referred to an "80-year-old grandma" who was charged for her involvement in the Jan. 6 attacks on the Capitol in an attempt to argue that Biden's lack of charges were unfair.

"There was an 80-year-old grandma that came to Washington, D.C., a few years ago did not commit a violent crime, committed a crime but not committed violent crime, and she was fully prosecuted," Tiffany said. "Doesn't seem like it's a dual system of justice where the president is above the law."

It appeared that Tiffany was referencing Pam Hemphill, a grandmother who was charged and convicted in a Jan. 6 trial who has been cited repeatedly by Republicans as a victim of over-prosecution. Hemphill has rejected that characterization, asking Trump on Twitter to stop bringing up her story. "Please @realDonaldTrump don’t be using me for anything, I’m not a victim of Jan6, I pleaded guilty because I was guilty!" Hemphill tweeted in June 2023.

But Tiffany's office later told NBC News that he misspoke and was referring to an "81-year-old grandpa," Gary Wickersham, who was sentenced to home detention and probation in his own Capitol riot case.

House Republicans are learning the hard lesson Democrats learned from Mueller’s testimony: these career prosecutors aren’t going to chase your theory or leading question. They’re going to refer to their report. Over and over and over.

Rep. Ted Lieu, D-Calif., took a not-so-subtle swipe at Jordan before diving into his questioning of Hur.

“Unfortunately, the actions of this chairman in ignoring a bipartisan, congressional subpoena have damaged the ability of this committee to get information from witnesses and damaged the rule of law," he said.

His comment was ostensibly a reference to Jordan's failure to comply with a subpoena from the House Jan. 6 committee to testify about his knowledge of Trump's actions on the day of the Capitol riot.

In one tense exchange over the conclusions of Hur's report, Rep. Pramila Jayapal, D-Wash., and Hur sparred over whether the special counsel report exonerated the president.

The Democratic congresswoman stated that Hur's report amounted to a "complete exoneration" of the president, but Hur disputed that and tried to interrupt her. The two repeatedly spoke over each other until Jayapal said plainly: "Mr. Hur, it's my time."

Jordan asked Hur, "If you had the same facts, and the individual that you were investigating was 65 and had a good memory, do you reach the same conclusion?"

"Congressman, as I responded earlier, with these lines, I am not here to entertain hypotheticals about facts or circumstances that may be different," Hur said.

Hur warned lawmakers at the outset of this hearing that he's a prosecutor, not a partisan, and he stuck to that posture — despite the best efforts of his interlocutors.

Going into this hearing, some liberals portrayed Hur as a partisan Republican who resigned from the Justice Department so that he could testify today and torch Biden. Conservatives, meanwhile, have hoped Hur could help revive their impeachment probe, after their key witness was charged with lying to the FBI.

Instead, Hur — who acknowledged he is a registered Republican — has responded to lawmakers' tirades with tedium.

Maintaining an even tone and choosing his few words carefully, Hur refused to venture beyond the contents of his report. When asked leading questions, he generally responded by simply stating what his report stated on the topic and refused to engage with hypotheticals or judgment questions.

"The members are able to draw their own conclusions," Hur said of the transcript of his interviews with Biden.

Rep. Eric Swalwell, D-Calif., asked Hur to pledge not to accept an appointment from Trump in a possible second term.

Hur declined to do so saying he is here to discuss his report. "I'm not here to talk about what may or may not happen in the future," he said.

Rep. Hank Johnson, D-Ga., accused Hur of writing the report to help Trump defeat Biden in 2024 and secure himself a federal judgeship.

"You're doing everything you can do to get President Trump re-elected so that you can get appointed as a federal judge, perhaps to another position in the Department of Justice. Is that correct?" Johnson pressed.

Hur pushed back forcefully saying, "I have no such aspirations" and that "partisan politics had no place whatsoever in my work."

Rep. Adam Schiff, D-Calif., suggested that Hur had a political motive in writing his report, telling Hur he could not "be so naive" to not understand the "political firestorm" that would ensue.

"Mr. Hur, you cannot tell me you're so naive as to think your words would not have created a political firestorm. You understood that, didn't you, when you wrote those words?" Schiff said, referring to Hur discussing Biden's memory in the report.

In response, Hur continued to say that "politics played no part whatsoever" in his report, saying that he followed DOJ regulations.

Schiff went on to suggest that Hur added language that he knew "will be useful in a political campaign."

"You were not born yesterday. You understood exactly what you were doing," Schiff said.

A large stack of pizzas from local chain We the Pizza was just brought into the GOP side of the committee room.

We haven't had a break yet, but the House is expected to vote around 1:30 p.m. ET, so it's likely members will pause then.

It’s hard to escape the James Comey vibes at this House hearing.

In both cases, a Republican prosecutor declines to charge a Democratic presidential candidate but criticizes the person in a manner that has political impact. The result is that neither party is satisfied. Republicans demand to know why he didn’t prosecute; Democrats argue he used gratuitous editorializing to hurt their candidate politically.

Rep. Darrell Issa, R-Calif., pressed Hur about whether he found Biden innocent in the case.

"I’m going to presume that you would never prosecute someone you thought was outright innocent?" Issa asked.

"Correct," said Hur.

"In this case, did you reach a conclusion that this man was outright innocent?" Issa said.  

"That conclusion is not reflected in my report, sir," Hur responded.

In his examination of Hur, Rep. Matt Gaetz, R-Fla., said, "I don't believe Biden should have been charged, I don't think Trump should have been charged."

Hur pushed back on Gaetz's statement that his report found that all standards had been met to charge Biden, saying "based on the evidence" he would not be able to prove the "intent element."

Oversight Committee Chairman James Comer, R-Ky., asked Hur whether he interviewed a series of Obama and Biden administration officials that the Republican congressman believes might be helpful for his own investigation of alleged "influence peddling" by the Bidens.

It appeared he wanted Hur to confirm current White House and Biden administration staff who were interviewed but not named in the report. One of the people he asked about, Annie Tomasini, whose name Comer mispronounced, just was promoted to deputy chief of staff and has worked for Biden on and off since he was in the Senate.

Comer asked Hur whether he could recall any information that could be "helpful" to the GOP investigation "pertaining to [Biden's] family’s influence peddling activities."

Comer's probe, which is part of the House Republican impeachment inquiry, recently faced a major setback when an FBI informant whose information was at the "heart" of the probe was arrested for lying to the bureau about the president and his son Hunter Biden.

It’s unclear whether Biden is watching any of the hearing live, but he was scheduled to receive his presidential daily briefing this morning and is set to depart shortly for a meeting with the Teamsters union at its Washington, D.C., headquarters.

Later today, Biden will meet with the president and prime minister of Poland.

Jordan went on a tear about Biden's holding of classified information, arguing that he did so in order to make money, pointing out that Biden got an $8 million advance for his last book.

That clip could surface again, since Republicans like Comer — who is sitting there with Jordan — have tried to argue that any nice things Biden purchased after leaving office must have come from secret payments via his son from foreign entities.

Biden was a lifetime elected official who wasn't rich when he left office. But, as the White House has said, Biden got a book advance and that's how he afforded a beach house and other items.

The Hur report said that Trump’s case was different from Biden’s because the former president allegedly “obstructed justice” after being given chances to return classified documents.

“Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite,” the report said. “According to the indictment, he not only refused to return the documents for months, but he also obstructed justice by enlisting others to destroy evidence and then to lie about it.”

The report compared Trump’s alleged behavior with Biden’s, laying out the ways the president cooperated with the special counsel throughout the course of the investigation.

“In contrast, Mr. Biden alerted authorities, turned in classified documents to the National Archives and the Department of Justice in 2022 and 2023, consented to the search of multiple locations including his homes, permitted the seizure and review of handwritten notebooks he believed to be his personal property, and in numerous other ways cooperated with the investigation.”

Read the full story here.

Rep. Zoe Lofgren, D-Calif., said she was surprised to learn that Biden's diaries, that he wrote as vice president, were considered classified.

"Frankly, I was surprised to learn that some of the classified documents were actually personal diaries that many executive officials have taken home with them because it was in their own handwriting," Lofgren said about Biden.

She continued, "The investigation found that President Biden believed that his notebooks were his personal property, including work and political notes, reflections, to-do lists and more that he was entitled to take home."

Rep. Tom McClintock, R-Calif., launched into questioning Hur by asking "Is it now OK" to hold onto classified documents?

"Is it now OK to keep classified documents in my garage and take them out and show them to my associates?" McClintock said.

"I would not recommend it," Hur responded.

"All I have to do when I'm caught taking home classified materials to say, 'I'm sorry, Mr. Hur, but I'm getting old, my memories not so great,'" McClintock said. "This is the doctrine that you've established in our laws now and it's frightening."

It’s quickly becoming clear that a lot of this hearing will be members of Congress trying to “explain” to Hur what they think was in the report he wrote — though it’s really just their partisan reading of his document, which they try to badger the author into affirming.

For instance, when Hur tried to respond to Nadler’s questions with nuanced answers, the Democrat cut him off and scolded him for not simply agreeing.

Nadler repeatedly draws a contrast between both Trump and Biden's handling of classified documents, pointing out that Trump is charged by federal prosecutors with willfully retaining classified documents and conspiring to conceal those documents.

"He's facing additional charges for lying to investigators," Nadler said. "And the reason why President Biden is not facing a single charge ... is not because you went easy on him, but because after reviewing 7 million documents, and interviewing nearly 150 witnesses including the president himself, you could not prove that he had committed a crime."

Nadler said that Biden didn't lie in the investigation and isn't accused of directing his staff to lie either as Trump is accused of doing. Hur confirmed that directing staff to lie is an example of obstruction.

One of the key findings from Hur was based on audio the investigators obtained from Mark Zwonitzer, who co-wrote Biden’s 2017 book with him.

In that audio, the special counsel report says, Biden told Zwonitzer that he had found classified information in his possession. Marc Krickbaum, who along with Hur interviewed Biden last October, asked the president if he remembered finding classified information.

Nadler asked Hur, "Your ultimate conclusion was that President Biden could not be charged with a crime because even after your thorough investigation, you could not find sufficient evidence to charge him, correct?"

Hur replied, "My ultimate conclusion was that criminal charges were not warranted."

Nadler cut off his answer, sharply telling Hur, "I have limited time so please, when I say correct or not correct, answer the question."

Hur really emphasized the word "remember" in his opening statement as he discusses why he characterized Biden having issues with his memory.

"We interviewed the president and asked him about his recorded statement, 'I just found all the classified stuff downstairs.' He told us that he didn't remember saying that to his ghostwriter. He also said he didn't remember finding any classified material in his home after his vice presidency. And he didn't remember anything about how classified documents about Afghanistan made their way into his garage."

Hur in his opening statement defended his descriptions of Biden's memory and age that the president and his allies have criticized.

"There has been a lot of attention paid to language in the report about the president’s memory, so let me say a few words about that," he said.

He said the department’s regulations required him to write a confidential report explaining his findings to the attorney general. Hur said that he needed to assess Biden's state of mind for the report, including his memory and mental state.

"The evidence and the President himself put his memory squarely at issue," he said. "My assessment in the report about the relevance of the president's memory was necessary and accurate, and fair. Most importantly, what I wrote is what I believe the evidence shows and what I expect jurors would perceive and believe. I did not sanitize my explanation, nor did I disparage the president unfairly."

House Oversight ranking member Jamie Raskin, D-Md., noted that Biden did not claim presidential immunity, unlike Trump, and that Biden did not "hide boxes under his bed or in a bathtub."

He quoted from special counsel Jack Smith's report on Trump's handling of classified documents, saying that Trump "obstructed justice by enlisting others to destroy evidence, and then to lie about it," unlike Biden.

As Hur describes his background and resume, it's worth noting one particular moment during the interview when Biden seemed to allude to the possibility Hur might run for office. At one point, Biden is describing the contents of a desk drawer and a particular item related to a past campaign. He says to Hur: “That is something, if you ever run for office, you’ve got to keep.”

Hur replies: “That will never happen, sir.”

The Biden campaign is providing its own rapid response, mostly focused on questions about Biden’s memory and recall, while also pointing out moments in the transcript when Hur suggested he might ask questions that were “unclear or badly phrased.”

House Oversight Committee Chairman James Comer, R-Ky., who's appearing at the hearing with ranking member Jamie Raskin, D-Md., asked in his opening statement why Biden kept specific documents in unsecure locations for years.

"Many questions remain. But now the White House is obstructing Congress as we seek the truth for the American people," he said.

Comer said Republicans have subpoenaed a former White House counsel to appear for a deposition, but said the White House is seeking to block her testimony.

"We’ve also subpoenaed the Department of Justice for audio recordings and transcripts of President Biden’s interview with special counsel Hur," he said, saying that they were due last Thursday. "Only this morning, a couple of hours before today’s hearing, the Department of Justice finally provided the transcript of President Biden’s interview with special counsel Hur. The timing is not coincidental."

Democrats wasted no time addressing the political subtext of the hearing — questions about Biden’s age and mental fitness — by accusing Trump of being the one with memory issues.

Nadler used his opening remarks to say Biden “probably committed a verbal slip or two” but said it doesn’t matter because Biden was ultimately not charged over his handling of classified documents, while Trump was.

“What does that say about his mental state?” Nadler said of Trump, before playing a video montage of Trump's verbal slips.

“That is a man ... who ought to think twice before accusing others of cognitive decline,” Nadler said.

Nadler played a compilation of Trump appearing to have memory lapses, including forgetting names and dates, which he said made the point that Trump and the Republican Party are not in a position to criticize Biden.

Nadler turned the focus onto Trump’s alleged mishandling of classified documents.

“That is a man who is incapable of avoiding criminal liability,” Nadler said following the video. “A man who is wholly unfit for office ... and a man who at the very least, ought to think twice before accusing others of cognitive decline.”

The political backdrop to this hearing was underlined by the fact that both party's openings focused on the actions and words of the other party's presidential nominee.

A committee aide said Republicans’ top priority today is to highlight Hur’s description of Biden as a “sympathetic, well-meaning, elderly man with a poor memory” and his references to Biden’s “diminished faculties.”

For Republicans, the angle is seen as far more politically advantageous than Hur’s description of evidence that Biden willfully retained classified documents — evidence Hur said didn’t justify prosecution. Given that Trump, the expected Republican presidential nominee, has been charged criminally with mishandling classified material, the memory issue is a more potent weapon, the source said.

Hur said in his report that Biden couldn’t place in time what years he was vice president or when his son died. That language caused a huge stir, but Democrats say Biden’s robust performance in his State of the Union speech may have blunted some of the damage.

Republicans will want to know whether there were other examples of the president’s sounding confused during his five-hour interview with Hur, the transcript of which hasn’t been released to the public or the committee. But Hur is expected to resist any effort to get him to stray beyond what he included in his 345-page report.

At the time, White House aides debated whether Biden should speak at the hastily arranged press conference that just played during the beginning of the hearing.

White House officials concluded that evening that Biden needed to address the special counsel’s most damning allegations head-on and express his anger about the report directly, according to two people familiar with the decision.

Senior Biden aides believed it was imperative for the president to call out what they viewed as purely political criticism from Hur because, they argued, he was concerned about potential blowback from conservatives for not charging Biden with a crime, one of the people said.

Jordan used his opening statement to play a large part of Biden's press conference that he gave after the release of the Hur report. In the press conference, Biden struck a defiant tone, rebutting several of the report's findings, including saying that he "did not share classified information with my ghost writer."

In response to the report's now famous line that Biden seemed like a "well-meaning elderly man with a poor memory," Biden replied: "I’m well-meaning, elderly, and I know what the hell I am doing."

Beginning his response, Nadler jokingly thanked Jordan for allowing Biden to give the opening.

Hur is set to testify before Congress after facing fierce backlash following his report about Biden’s handling of classified material and calling the president’s age and memory into question. NBC’s Peter Alexander reports and Hallie Jackson joins "TODAY" with analysis.

Republicans on Capitol Hill have been looking into ways Biden’s handling of classified documents could be useful to defending former President Donald Trump, according to a source familiar with the plans.

While much of the initial focus of Hur’s report was on Biden’s memory lapses, GOP members also now see a different opportunity: to exploit how Biden justified his retention of the documents after he left the White House while Trump is facing an indictment in Florida for his own alleged mishandling of classified documents. For instance, Republicans have zeroed in on Biden saying he kept the notebooks because “they are mine” and “every President has done the exact same thing,” or calling the notebooks “my property.”

There are many stark differences between the two cases, but watch for Republicans, with Hur testifying today, to try to underscore where Biden makes claims that sound like Trump.

Hur is seated alone, with no counsel, and the committee hearing is underway. Jordan is kicking it off.

A protester, affiliated with the group Code Pink, engaged in a protest inside the hearing room before things kicked off, calling for a cease-fire in Gaza.

The group routinely protests on the Hill and many members have been detained for disrupting hearings. There is not an apparent connection to the testimony of Hur, as members of the group did not appear to know who he is.

Trump appointed Hur to be Maryland’s U.S. attorney, but people who know him say he is not a Trump Republican. He has donated money to former Maryland Gov. Larry Hogan, among other moderate Republicans.

He is the son of Korean immigrants who attended Harvard and Stanford Law and then clerked for Chief Justice William Rehnquist.

Hur, who was named by Garland last January to oversee the investigation into Biden’s handling of classified documents, is a former federal prosecutor who has worked with many Republicans throughout his law enforcement career.

Hur has been a partner since April 2021 at the law firm Gibson, Dunn & Crutcher, where he has focused on enforcement, investigations and litigation. He joined the firm soon after having left the Justice Department, where he was a member of the senior leadership team for about a year as the top adviser to then-Deputy Attorney General Rod Rosenstein. Then-President Donald Trump nominated Hur to be U.S. attorney for Maryland, a role he held between April 2018 and February 2021.

While he has a track record of working for Republicans, he has also been respected by Democrats. As Hur was set to leave the federal government in 2021, Maryland’s Democratic senators, Ben Cardin and Chris Van Hollen, praised him for his “excellent service” as the U.S. attorney for the state.

Read the full story here.

Hur has arrived and is in a holding room, awaiting the start of the hearing.

The White House is preparing to fact check Hur’s testimony in real time, according to an administration official. Aides plan to blast out responses to claims by both congressional Republicans and the special counsel himself.

Bottom line: Expect to hear the White House and its Democratic allies repeatedly emphasize today that the conclusion of the Hur report resulted in no criminal charges, despite the questions raised about the president’s handling of classified material.

The full Hur transcript of Biden's interview with Hur in October is now available to view from the House Judiciary Committee Democrats’ website.

The recorded interviews took place Oct. 8 and 9.

The Justice Department began making materials from Hur’s investigation available to the House Judiciary Committee on Friday. Jordan and Comer subpoenaed the materials last month. 

The documents made available included communications between the Justice Department and the White House and/or Biden’s personal lawyer referring or relating to Hur’s report.

The full transcript of Hur's five-hour interview with Biden was also provided to Congress today, a source familiar with the matter said.

Hur resigned in recent days, a source familiar with the matter told NBC News, allowing him to testify before Congress today as a private citizen — a move that is typical for special counsels.

Hur has retained attorney William Burck, a separate source familiar with the matter told NBC News. Burck previously represented special counsel John Durham as his personal attorney, as well as former White House counsel Donald McGahn.

Hur’s bombshell report on Biden’s handling of classified documents concluded that he presented himself as an “elderly man with a poor memory” who was unable to remember key dates, including when he served as vice president or the year his son died.

Biden, for his part, has lambasted Hur for bringing up the topic of Beau Biden’s death, and his lawyers have criticized the report. 

But the transcript of Biden’s interview, which was reviewed by NBC News, paints a more nuanced picture on both sides.

In his prepared opening statement, Hur will outline his rationale for discussing Biden’s memory in his report, which has largely drawn scrutiny from Biden's opponents. Among the jarring lines about Biden's mental acuity, Hur said in his report that the president's memory was "significantly limited" in his interviews with the special counsel last year.

“My task was to determine whether the President retained or disclosed national defense information ‘willfully’ — meaning, knowingly and with the intent to do something the law forbids. I could not make that determination without assessing the President’s state of mind,” Hur’s prepared remarks say.

“For that reason, 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,” he added. “These are the types of issues prosecutors analyze every day. And because these issues were important to my ultimate decision, I had to include a discussion of them in my report to the Attorney General.”

Hur is expected to defend the language he used about Biden’s memory, arguing, as Justice Department officials have to NBC News, that it was an important factor in why Biden should not be charged, despite a 2017 tape recording of him saying he had found classified material in his Virginia home.

When Biden’s lawyers objected to the language before the report was released, the Justice Department referred them to Bradley Weinsheimer, the senior career official at the department.

Weinsheimer did not share the view of many legal experts who have opined that what Hur did was wrong. Rather, he wrote in a letter obtained by NBC News, that “the context in which this information is used in the report makes it appropriate under Department policy and the Special Counsel regulations. The identified language is neither gratuitous nor unduly prejudicial because it is not offered to criticize or demean the President; rather, it is offered to explain Special Counsel Hur’s conclusions about the President’s state of mind in possessing and retaining classified information.”

Democrats say Garland should have edited some of the memory language out of the report, but Justice Department officials say that would have drawn allegations of political favoritism, especially given Weinsheimer’s view that there was nothing improper about it.

Hur will appear before the House Judiciary Committee this morning, five weeks after his report’s portrayal of Biden’s memory and mental state thrilled Republicans and infuriated Democrats.

The hearing begins at 10 a.m. ET and is likely to last several hours as members of the 44-person committee, in addition to House Oversight Committee Chairman James Comer, R-Ky., and ranking member Jamie Raskin, D-Md., get the chance to ask questions of the special counsel.