“A statue has never been built in honor of a critic”
James Sibelius
Readers know that over the years I have occasionally criticized politicians, courts, specific court decisions, news outlets, and social media sites. There might have a book and movie review in there. Rest assured that I’m under no illusion that someday there might be a statue in my honor.
I don’t think I’ve engaged in too much criticism. Criticism is generally thought to tear another down, embarrass them, belittle them.
I’d like to think that I don’t engage in criticism as it’s never my intent to embarrass or belittle others. People who know me know that’s not how I roll.
Instead, I think I critique rather than criticize. The Cambridge Dictionary defines critique as to give an opinion or judgment about a piece or work, book, movie, etc. The central purpose of a critique is to assist others and urge them to improve their work product.
Put another way, it’s more than Melania Trump’s “Be Best.” After all, it’s Melania so “I Don’t Care, Do You?” These two admonitions aren’t critiques. Without context, they are neither criticism nor critique. She would need to explain the context and purpose of those comments to have any import at all.
See what I did there? I’m trying to help her so that she does better in the future. I have tried to provide a helpful critique rather than a denigrating personal put down. In this context, at least, let’s hope that she begins to care about what she communicates and does better.
By now you may be wondering what this word smithing is all about. Simply stated, I’m about to critique the work product of some friends of mine.
Before I begin, let me state that a lot of my writing deserves to be critiqued, and it has been by me (the hardest of critiques) and occasionally others. I am by far the most severe critic of my writing. One critique I’ve received from others is that I be pithier. Like the SNL skit involving more cowbell, I could use more pith.
I understand the critique and welcome it. I realize that as a former classroom instructor and as a former practicing attorney, I’m given to over-explaining something. I wrestle with the thought that over-explaining is less of a fault than under explaining something. I’m fearful that due to editing I overlook something vital to the listeners’/readers’ understanding of my given topic.
In the New Year I’ll try to be pithier, not today, but soon. But it’ll be difficult because I’m not really good at self-editing. One need only look at my book to see the truth of that statement. I, like all of us, am a work in progress.
With all of that said, I’d like to move on to the topic of this piece – a critique of a news item published by a local online news site in my state. This is a site which over the years has published some of my pieces until about three years ago when I started regularly posting on my blog along with other sites including, more recently, Substack. And I am friends with people who work for the site, particularly its News Director.
I’m reminded of the admonition of the late Providence mayor and convicted felon Vincent A. “Buddy” Cianci who once said, “never fight with someone who buys paper by the roll and ink by the barrel.” Lucky for me that I’m about to critique a news site that measures its work product by the byte.
The site, GoLocalProv, strives to be a source for news (mostly local), sports, weather, entertainment, obituaries, legal notices, community news, commentary and more. One thing it does is broadcast live interviews with experts on a variety of topics and records these interviews for later publication on its site. It is a report of a recent broadcast on which I focus.
On December 28, the GoLocalProv published a story about an interview that CEO Josh Fenton conducted with political scientist Jennifer Lawless, chair of the Political Science department at the University of Virginia. Prior to that, she taught at Brown University in Providence, and like me she once ran for the democratic nomination for Congress. And like me, she lost.
The subject of the interview was how current and future presidential historians, scholars, and political scientists would rank President Joe Biden. The published piece noted that these rankings by presidential scholars are published regularly, specifically referring to a 2021 list sponsored by C-Span as the most recent. In that ranking, Trump, fresh off his leaving office, finished 42nd out 45, thus permitting James Buchanan to maintain his iron grip on last place.
That struck me as odd because I recalled a recent ranking published in 2024, when the presidency of Donald Trump could be more fairly evaluated. And I was correct. The outcome of these new rankings was that nothing changed at the top. Lincoln was still number 1, but that finally James Buchanan lost his hold on last place. Yup, the 45th president came in as number 45 in the more recent rankings. You can see it here:
Now I don’t want to pick nits here, but because of the wording of the piece the average reader might assume that no recent presidential rankings were available. And as I showed above, that just ain’t so.
I mean this as a critique, not a criticism. Perhaps a 30 second google search would have provided a contemporaneous ranking to better inform the reader.
But the thrust of the interview focused on where Biden would rank in the future no matter which rankings were published. And it’s here that I have my real problem.
Mr. Fenton started out the broadcast with a prefatory comment and then went into his question. For accuracy and fairness, I provide the complete published passage:
“There's obviously clear, clear signs that [President Biden's] mental faculties are greatly diminished. Is this going to go well in the long term as those presidential scholars look back and rate the presidents? Is Joe Biden going to be in the top half of the presidents or in the bottom half?”
It seems to me that the premise of Fenton’s question is that Biden is a mentally deficient decrepit old man, so am I right? And that being the obvious case, how’s his mental decline going to be viewed by the future?
For her part, professor Lawless was not having it. Instead, she cited Biden’s commutations of the death sentences of 37 federal prisoners issued a mere 5 days prior to this interview.
She said there were two reasons why these commutations were important. There are serious issues regarding the criminal justice system in America in general, and about conviction rates of but also the sentences imposed on minority defendants in specific. And the second reason was that the incoming Trump administration had already announced its intent to expeditiously execute these prisoners.
Then turning to the premise of Mr. Fenton’s question, Lawless said:
“We're sort of all mired in what happened from June 27th (the presidential debate] [sic] until the election day and beyond. So the last six months of Joe Biden's presidency were problematic, but when historians look back, and when presidential scholars look back, they're also going to look at the legislative accomplishments that happened over the first two years and frankly even the first three and a half years of the administration…”
To me that answer seems contradictory to her prior response on the commutations. Moreover, I think it’s debatable whether the last six months of Biden’s presidency were “problematic” at all. I assert that there are reasonable grounds on which to debate Lawless’ response.
But does Mr. Fenton seize on any of these points? Let’s see this exchange:
“‘The special prosecutor [Robert Hur] investigated Joe Biden's management of presidential documents stored in his garage, in offices, etc. He did not move forward with sanctions against [Biden] but he did outline in his report years [sic] that earlier in an interview the president was mentally deficient — that he couldn't remember basic dates, confused on basic facts, milestones in his life including the death of his son Beau.
“‘As presidential papers come out, datebooks come out, and notes from meetings come out, isn't there a real concern that the president's mental faculties weren't just [diminished] from the presidential debate? It's going to go back years and years and while the staff kept everything together. Joe Biden's legacy is going to be that for the vast majority of his entire term as president, he was not functioning at a capable level?’ asked Fenton.”
‘“I don't think we have any evidence of that, I really don’t,’ defended Lawless.”
“‘Well, I just cited one,’ said Fenton.”
Ok, this is where I drew the line. The prior part regarding presidential ranking was Pulitzer worthy compared to this exchange. I’m certain there might be a valid point imbedded in Fenton’s comments, but to be honest I’ll be damned if I can find it.
Let’s start with the obvious. He’s using a premise of the yet unseen release of datebooks, meeting notes, and Biden’s own presidential papers to prove what to Fenton is obvious: that for “years and years,” Biden was mentally deficient.
What the actual F? Years and years? It would seem, according to Mr. Fenton, that Biden’s mental state was deficient when he took his oath of office on January 20, 2021. I know that this is just not true. And the CEO of a news publication should know that his statement is unsupported by actual empirical evidence.
However, the Rosetta Stone, or the canary in the coal mine if you will, to Fenton’s assertions about the decline of Biden’s mental state is Special Prosecutor Robert Hur’s report on Biden’s possession of classified documents after he left his office as vice president.
Let me begin with a few comments about how I approached the assessment of information as “fact.” By training and experience, the closer one gets to the underlying evidence or proof of an assertion, the better. Thus, if I ask someone “how’s the weather today,” I might be told that it’s sunny with a cloudless blue sky and warm temperatures. I may trust that person but I’m still going to look outside and open a window.
In other words, why rely on secondary information when primary sources are available? When it comes down to it, anyone relying on secondary information is really asserting their analysis of someone else’s recitation of a primary source.
That is exactly what Mr. Fenton appears to be doing by relying on Hur’s report (i.e., Hur’s conclusions) to support his, Fenton’s, assertion of Biden’s alleged cognitive deficiencies.
In the law we have something called the Best Evidence Rule. That’s when a copy of a document cannot be admitted into evidence when the original document is available. The logic of that Rule applied in this instance begs the question why rely on a second party’s conclusions of a first party’s testimony when a certified deposition of that testimony is available?
In the report of the Special Prosecutor, Hur made two basic assertions: 1) that Biden willfully and knowingly unlawfully possessed classified materials; and 2), if prosecuted, that a jury would see Biden as a nice frail old man with a faulty memory.
To be specific, to quote from the Report, “Mr. Biden would likely present himself to a jury, as he did during our interview with him, as a sympathetic, well-meaning, elderly man with a poor memory.”
The first assertion is subject to debate, and I would assert that is so thin as to be anorexic. I argue that thanks to Biden’s deposition, there is little to no evidence of the requisite intent required to secure a conviction. That is a judgment call over which reasonable people could reasonably disagree.
Moreover, such a prosecution based on these facts would likely have been seen as an attempt by Hur to draw a rough equivalency between the few documents Biden had in his possession with the cartons of documents in the possession of Trump, including over 100 classified documents.
But it’s the second assertion that the GoLocalProv CEO relies on in support of his claim of Biden’s cognitive deficiency. To rely on Hur’s report, for reasons I’ll explain below, in my view is tantamount to a fool’s mission.
In order to evaluate Hur’s second assertion, I needed to read the certified transcripts of Hur’s deposition of Biden. Conducted over two days, October 8 and 9, 2023, totaling 5 hours, the transcripts run to 267 pages.
Understand the milieu in which these depositions were taken. Aside from the usual demands on any president’s time (with one recent notable presidential exception), the first day of these interviews took place the day after the Hamas attack on Israeli civilians, costing 1200 civilians their lives and taking another 250 people hostage. This was the worst murder of Jews since the holocaust.
There’s no question that this weighed on Biden’s mind as it’s referenced in the transcripts.
To the question of Biden forgetting when his son Beau died, that’s half correct. He remembered the day, May 30, but couldn’t recall whether it was 2016 or 2015. It was 2015.
Now it’s important to understand that while the question of when Beau died occurred pretty early in the interview, around Page 50 in the October 8 transcript. It arose in the context of which packing boxes were placed at what location and on what date.
The packing issue also arose during questions regarding who packed the then vice president’s offices and who directed the boxes to which of three locations they were sent. Biden responded that his staff, many of whom had been with him for decades, were directed to pack his materials (e.g., binders and files) and that was the extent of his direct involvement.
[This was unlike a former president who allegedly personally packed boxes in his office and residence full of presidential papers – and some classified materials – and ordered that they be transported to his Florida residence.]
So, when Hur asked how a specific box arrived at a given location and how the items contained therein were unpacked and stored, Biden didn’t know because he had staff to perform these functions. As a result, when Biden was asked later in the October 8 interview and again on October 9 how classified documents ended up in some files or binders, he didn’t know.
And there’s no evidence to contradict Biden’s answers on this topic.
Hur even asked Biden if he thought the classified documents, even inadvertently moved to his properties, were his personal “property?” Biden responded directly with an emphatic “no.” (Contra Trump’s claims that the documents in Mar a Lago were his property)
Biden was later asked if he kept confidential documents because he intended to write a book. Again, the answer was no, the only book he intended to write and then did write concerned his deceased son Beau.
It was clear that Biden was prepped by counsel, as any deponent represented by competent counsel would be, to only provide information that he definitely recalled. He was no doubt instructed not to speculate in answering any question. Thus, to a question regarding who he had breakfast with on a specific date, Biden couldn’t recall. The breakfast in question was five or six years ago.
Biden was asked, as vice president, how he handled and returned classified materials. He gave detailed answers describing how they were stored while in his possession, and how he ordered their return when he was done with them. Although probed by Mr. Hur, these answers were not contested.
When asked how, when he discovered documents that he knew he should not possess, Biden was clear that he immediately returned them. This too was uncontested.
There were any number of instances regarding the placement and storage of materials, or the contents of binders and files that Biden could not recall. He didn’t say he forgot; he said he didn’t know or words to that effect. There was no equivocation in these responses.
Biden’s biggest sin, if sin it is, was that he responded like the guy who when asked the time, in response would not just launch into talking about how watches are made but would detail the history of watchmaking. To Hur and his staff’s credit, they didn’t try to curtail his extemporaneous responses until late on October 9 as time wound down.
In other words, this was Biden being the quintessential Joe Biden.
To draw from these interviews that Biden is “as a sympathetic, well-meaning, elderly man with a poor memory” as Hur did doesn’t square with the contents of these transcripts.
Why did Hur make the assertions described above? Who knows, but I do think I can make a reasoned guess. After the entry onto Trump’s property to recover classified and other documents, President Biden and former vice president Mike Pence alerted authorities that they too had classified documents in their possession.
Regardless of the differences between the reactions by both Biden and Pence with that of Trump’s, the question of the mere inadvertent possession of documents became politicized. A Special Prosecutor was appointed in Biden’s case, but nobody was appointed to formally investigate Pence.
By mid -2023, Pence received word that he would not be prosecuted.
That nol pros of Pence only increased the political heat on Biden’s case, and particularly on Hur. At some point, Hur must have known that he had no case on which he could obtain a conviction. Unlike another contemporaneous case, there was no evidence of intent. But he had to author a report, one that would no doubt incur the wrath of the Republican hotheads in the House. As it turns, he was correct.
Therefore, he wrote the Report containing his two main conclusions: “there was sufficient evidence for me to obtain a conviction;” but “a jury wouldn’t convict the elderly cognitively deficient president.” What horsehocky!
That’s the evidence that Mr. Fenton relied on when asserting his claim of Biden’s mental deficiencies.
We’re entering a turbulent four-year period. We are constantly deluged with a daily torrent of misinformation. That is why every news organization, from the most esteemed legacy press to the most obscure monthly publication, be accurate in its reportage. When any news organization is sloppy in how it presents information, it’s the public that suffers.
And I recognize the obvious irony of this piece, to the reader I am a secondary source relating his opinion and analysis of a primary source. So, if you question my analysis and conclusions, do your own work. The October 8 transcript can be accessed here:
And the October 9 transcript can be accessed here:
Those of us who report and, like me, opine on those reports must do better. People read and listen to what we write and say. We’ll get some things wrong, that is inevitable. But we shouldn’t get things wrong because we were sloppy.
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