Joe Biden’s memory lapses during testimony are totally normal. Just ask Donald Trump | Opinion
In his 345-page report, Special Counsel Robert Hur concluded that “no criminal charges are warranted” concerning President Joe Biden’s removal, retention, and disclosure of classified documents. However the special counsel was concerned that his conclusion might be misconstrued as a double standard in light of the prosecution of Donald Trump for his own removal and retention of classified documents. Hur compared the two cases as follows:
Most notably, after being given multiple chances to return classified documents and avoid prosecution, 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 lie about it. In contrast, 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 the investigation.
Concerning classified documents about Afghanistan, the special counsel found that there was both a “shortage of evidence” needed to convict on these potential charges and “several defenses … likely to create reasonable doubt as to such charges.” Despite this shortage of evidence and the inability to make a case at trial, the special counsel nevertheless opined that Biden also might be perceived by a jury as “a sympathetic, well-meaning, elderly man with a poor memory.”
During my service with the Department of Justice in the 1980s, attorneys in my section gave witnesses deposition preparation sheets that advised: “Do not be evasive. However, if you honestly can’t remember, don’t be afraid to say so.” Deposition and investigative interviews are stressful, no matter the litigation stakes or the circumstances in which the testimony is given. If the testimony is given by the president of the United States in the midst of an international crisis, there are even more reasons to expect an inability to recall specific matters during five hours of prosecutorial questioning.
How common is it for those accused of wrongdoing to “not recall” specifics from many years ago? Pretty standard, at least in recent high-stakes litigation. For instance, the BBC has reported that Ivanka Trump, in the New York civil fraud trial involving her family, “repeatedly said she did not recall specifics, or was not aware.”
Nor does the former president himself have the world-class memory that he claims. On June 23, 2006, NBC reported on his deposition in a lawsuit brought against Trump University:
“Donald Trump claims to have a world-class memory, but it certainly wasn’t on display during his deposition for a lawsuit over Trump University.
“’I don’t remember,’ Trump told lawyers 35 times during his December testimony, which was released on Wednesday.”
His inability to recall covered a wide range of subjects — including whether he had told NBC News’ Katy Tur just a month earlier that he had the “world’s greatest memory.”
Even more relevant may be the 27 times that Trump “did not remember” or “could not recall” answers to questions put to him by Special Counsel Robert Mueller.
Biden is a sympathetic, well-meaning, elderly man. Like virtually all litigants, he apparently had memory lapses during his five hours of investigative testimony. Whether or not a jury might consider these as negating proof beyond a reasonable doubt, they in no way negate his record as either vice president or president of the United States.
R. Lawrence Dessem is dean emeritus and Timothy J. Heinsz Professor Emeritus of Law at the University of Missouri School of Law. He served as trial attorney and senior trial counsel in the Civil Division of the United States Department of Justice during the Carter and Reagan administrations.
This story was originally published February 13, 2024 at 12:29 PM.