Robert Hur and James Comey on Biden and Clinton in Their Own Words

Special Counsel Robert Hur's report detailing the findings of his investigation into President Joe Biden's handling of classified documents drew comparisons to former FBI Director James Comey, who in 2016 investigated Hillary Clinton's use of a personal email server as secretary of state.

Hur investigated whether Biden mishandled classified documents that were discovered at the Penn Biden Center for Diplomacy and Global Engagement as well as his home in Delaware. On Thursday, he released a report declining to prosecute Biden for the documents, but sparked questions about Biden's memory, writing that Biden did not remember when his son died or when he served as vice president.

The report comes as Biden has faced questions about his cognitive ability while running for reelection. Both his Republican critics and some Democrats have raised concerns about a number of gaffes made by Biden, 81, during speeches throughout his tenure as president, but he remains poised to secure the Democratic presidential nomination, potentially setting him up for a rematch against former President Donald Trump in November.

Legal and political experts quickly drew comparisons to Comey, whose July 2016 statement about Clinton's use of a personal email server while working in the Obama administration shook up the presidential race, in which she was the Democratic presidential nomination.

"It was entirely foreseeable Rob Hur would pull a Comey in his report. Garland was [100 percent] right to have appointed a Special Counsel but wrong to pick Hur and to think only a Republican could fit the bill," attorney Andrew Weissmann posted to X, the social media platform formerly known as Twitter.

Jim Messina, former President Barack Obama's 2012 campaign manager, wrote to X, "Let's be clear--the special counsel isn't a dummy and we should be very careful not to take the bait after Comey pulled this in 2016. Hur, a lifelong Republican and creature of DC, didn't have a case against Biden, but he knew exactly how his swipes could hurt Biden politically.

Newsweek reached out to the White House for comment via email.

Similarities Between Hur, Comey Investigations

There are several similarities between the investigations conducted by Hur and Comey.

First, Hur and Comey were Republicans working under Democratic administrations. Comey served as FBI director under Obama and was later fired during the Trump administration. Meanwhile, Biden's Attorney General Merrick Garland appointed Hur to oversee the investigation into Biden's classified documents.

Meanwhile, both Hur and Comey declined to prosecute Biden and Clinton despite issuing statements that raised political concerns for each of them. Hur's statements related to Biden's cognitive ability, over which Biden has faced attacks from Trump and other Republicans. Biden, however, maintains that he remains fit to serve, and a February 2023 health report revealed no indications of cognitive decline.

Robert Y. Shapiro, a professor of political science at Columbia University, told Newsweek that while the timing of Comey's report "might have had a small effect by raising the salience of 'Hillary's emails,'" the Hur report will raise whether Trump's classified documents case, for which he is facing criminal charges, should be handled differently from Biden.

"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," Hur's report reads.

It continues: "Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him—by then a former president well into his eighties—of a serious felony that requires a mental state of willfulness."

Shapiro noted that he believes Hur's "implicit political commentary" seems different from that of Comey.

"The possession of political documents was a bigger deal—especially Trump's—compared to Clinton's transgression(s), and Comey may have been more concerned with his professional reputation, which had been tarnished," Shapiro said.

Comey criticized Clinton's alleged carelessness with classified information. Clinton's use of a personal email server became a key issue during the 2016 presidential campaign, with Trump frequently attacking her over the matter. Comey, who eventually would be fired by Trump, recommended against prosecution

"Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information," he said.

He concluded there is "evidence of potential violations of the statutes regarding the handling of classified information," but that "no reasonable prosecutor would bring such a case."

"In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts," he said.

He added that he did not see any "clearly intentional and willful" mishandling of classified information, "vast quantities of materials exposed in such a way as to support an inference of intentional misconduct," disloyalty to the U.S. or efforts to obstruct justice.

Update 2/9/2024 1:10 p.m. ET: This article was updated with comment from Robert Y. Shapiro.