Regarding the Feb. 11 front-page article “Hur report’s critique seen as affront to DOJ norms”:
“Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal … is not a factor prohibiting prosecution. … It might be clear that the evidence of guilt — viewed objectively by an unbiased factfinder — would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case … the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution and allow the criminal process to operate in accordance with the principles set forth here.”
This does not say a prosecutor must prosecute if he or she is concerned with how what might be called “non-evidentiary” factors could impact the outcome. It’s the adage of distinguishing between what could be prosecuted and what should be prosecuted. A good prosecutor makes this distinction every day.
But this is not really a question of non-evidentiary factors. If you read actual declination memos, especially where intent and willfulness are elements of the crime that must be proved beyond a reasonable doubt, the defendant’s credibility is often an important evidentiary factor that prosecutors consider, even when it is unclear whether the defendant will testify. That is why Mr. Hur’s comments did not at all depart from Justice Department norms.
Barry M. Hartman, Chevy Chase
The writer was acting assistant attorney general and deputy assistant attorney general under President George H.W. Bush.
Ruth Marcus concluded her Feb. 10 op-ed, “A new realm of special counsel overreach: Geriatrics,” by pointing out that special counsel Robert K. Hur failed to avoid “let[ing] his report become a potent — perhaps even lethal — weapon” against President Biden in the upcoming election. But “let” implies that Mr. Hur’s comments might, in the end, have been accidental or inadvertent, or, as Ms. Marcus wrote earlier in the piece, that he might have been led “astray” in seeking to differentiate Mr. Biden’s conduct from former president Donald Trump’s. Despite her scathing critique, Ms. Marcus was far too generous.
Set aside that when younger adults make errors of speech or memory, they are called just that. When older adults commit similar errors, the not-yet-old feel entitled to diagnose them as evidence of incipient, if not full-blown, dementia — no medical training needed. Mr. Hur used his platform to damage Mr. Biden in a report that is far from evenhanded but that will conveniently be characterized as such by the president’s political opponents.
Mr. Hur deserves far more than the opprobrium of Ms. Marcus and other commentators. Attorney General Merrick Garland, who bends over backward to avoid appearing political, should publicly censure Mr. Hur for his egregious misuse of power. If Mr. Garland chooses to be silent, should voters expect his office to issue a similar diagnostic report on Mr. Trump’s mental acuity?
Lois Ambash, Needham, Mass.
Regarding the Feb. 9 front-page article “Report puts sharp focus on faltering memory”:
Special counsel Robert K. Hur does not have the evidence to indict President Biden, so it looks as if he is using his report to amplify GOP campaign attacks. I find one aspect of these attacks particularly loathsome: Republicans’ attempt not only to defeat Mr. Biden but also to destroy him — first by using his troubled son, Hunter, and now his dead son, Beau, as political fodder. Republicans assume Mr. Biden’s sons are a weak spot. But though his sons are obviously a tender matter, they are also continuing proof of Mr. Biden’s resilience and strength in navigating the worst life can throw at you and still doing your job well and serving your country in its time of need.
Annlinn Kruger, Bar Harbor, Maine
