A special counsel faced pressure to revise his description of the president’s failing memory after deciding against an indictment

US Representative Matt Gaetz has taken issue with a special prosecutor’s decision not to pursue criminal charges against Joe Biden for mishandling classified documents, saying the president was being spared legal accountability under a “senile cooperator theory.”

Gaetz, a Florida Republican, was among the lawmakers who verbally sparred with US Department of Justice (DOJ) special counsel Robert Hur during a House Judiciary Committee hearing on Tuesday. Hur defended his decision not to indict Biden, despite finding evidence that he “willfully retained and disclosed” state secrets that he took from the White House after completing his term as vice president in 2017.

The special counsel insisted that he didn’t find enough evidence of Biden’s intent to prove his guilt beyond a reasonable doubt to a jury. Gaetz replied, “But the reason you have that doubt is the senile-cooperator theory - the fact that Joe Biden is so inept in responding that you can’t prove the intent.” He added that it’s frustrating when former President Donald Trump is being prosecuted for mishandling of classified documents while Biden is being treated differently “because the elevator is not going to the top floor.”

Hur completed his investigation last month and issued a report detailing his findings. One of the reasons he cited for not filing criminal charges was that it would be difficult to persuade a jury to convict a president who came across during the investigation as a “well-meaning, elderly man with a poor memory.” During an interview with Hur, the president couldn’t remember such details as when he served as VP and roughly when his son Beau died, the report said.

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That characterization set off a political firestorm, with Republicans arguing that it was an unfair excuse to give Biden special treatment and Democrats claiming that Hur was trying to hurt the president’s reelection bid. A New York Times poll released last week showed that 73% of US voters - including 61% who voted for him in 2020 - believe the incumbent Democrat is too old to be an effective president.

Representative Adam Schiff, a California Democrat, told Hur that he knew the political impact his words would have. “Your own personal, prejudicial, subjective opinion of the president - one you knew would be amplified by his political opponent - you had to understand that, and you did it anyway.”

Hur noted that his analysis of the case required an assessment of how willful Biden was in mishandling state secrets. He added that White House lawyers pressured him to “revise” his description of Biden’s mental state, which he declined to do. Given the need to determine whether Biden knowingly broke the law, he said, “I had to consider the president’s memory and overall mental state.”

The special counsel also denied Democrat claims that his report exonerated Biden, saying the probe didn’t clear him of wrongdoing. A transcript of his interview with the president also exposed a false claim that Biden made when he angrily blasted Hur for asking him about his son Beau’s death. The transcript showed that Hur merely questioned Biden on where his documents were being kept when he left office in 2017, and the president brought up his son’s death, which had occurred in 2015.