Joe Biden, long targeted by Republicans over his age and cognitive fitness to hold the US presidency, has been facing a new attack line ever since special counsel Robert Hur cast doubt on his memory in a February 2024 report: that he was declared legally incompetent to stand trial. But these claims are false; the investigation into the Democrat’s past handling of classified documents made no such determination, which experts say can only come from a judge.
“First sitting President in US history to be declared legally incompetent to stand trial,” says text over an image of Biden shared March 4, 2024 on X, formerly Twitter.
The image also circulated on Facebook, Instagram, and TikTok.
The claim’s spread follows the February 5 publication of a report from special counsel Hur on Biden’s handling of classified documents as a senator and vice president.
Hur cleared Biden of criminal wrongdoing, but he raised concerns about the president’s mental acuity, spurring attacks from Republican lawmakers as Biden faces a likely rematch with 77-year-old Donald Trump in the US presidential election.
“The Special Counsel’s report exposing that Joe Biden’s mental decline is so severe that he can not stand trial means he is unfit for office,” said Congresswoman Marjorie Taylor Greene in a February 8 post on X.
But Hur made no such determination.
“Does anything in that report come within a country mile of a finding that Joe Biden is incompetent to stand trial? Of course not,” said Frank Bowman, a professor emeritus of law at the University of Missouri and the author of a book on impeachment.
Hur’s report referred numerous times to Biden’s memory as “limited,” claiming the 81-year-old did not remember the dates of his vice presidency and when his son Beau died (archived here).
“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,” the special counsel wrote.
“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.”
Biden and the White House pushed back on the report’s characterizations of his recall as “inaccurate, gratuitous and wrong.”
In any case, Hur’s description of Biden’s memory is “very different” from a determination of incompetency, said Barbara McQuade, a professor from practice at Michigan Law.
“Competency is a determination made by a judge as to whether a defendant is able to understand the charges against him and assist in his own defense,” the former US attorney told AFP in a March 5 email.
“Robert found there was insufficient evidence of willfulness to charge Joe Biden with a crime, in part because Biden did not remember some of the events about which he was questioned.”
Bowman, of the University of Missouri, told AFP on March 5 that the “level of mental incapacity” involved in situations where someone is deemed incompetent to stand trial “is pretty extreme.” The process involves a hearing and an examination by a court-appointed psychiatrist, he said.
“You have to be, you know, very much out there,” Bowman said. “Has anyone, at any time, found Joe Biden meets that standard? Of course not.”
John Woolley, co-director of the nonprofit American Presidency Project, also said claims that Biden is the first president declared incompetent to stand trial are “not true.”
AFP has debunked other misinformation about Biden’s documents case here.
