The commentariat is percolating misinformation about today’s House Judiciary Committee testimony by former Biden Justice Department special counsel Robert Hur, who investigated President Biden’s decades of illegally retaining classified intelligence and opted not to recommend an indictment.

To wit, with Hur having officially ended his DOJ service on Monday, the Independent’s Michael Feinberg claims that he has colluded with “Trumpworld figures” to testify as a private citizen, uninhibited by DOJ rules, so that he can cast President Biden in a more unflattering light.

Tellingly, Feinberg’s report has already had to be corrected. Among the “figures” Hur had supposedly consulted in preparation for his testimony was Sarah Isgur of The Dispatch. Isgur, who was the DOJ spokesperson for then-Attorney General Jeff Sessions, and who worked on the presidential campaigns of Mitt Romney and Carly Fiorina, is a superb lawyer but very much not of “Trumpworld.” The Independent now says Isgur “was approached” by Hur for help in preparing for his testimony “but declined to assist him in any way.” (I would not even be confident that she was approached based on this report — I’d wait for Sarah to speak for herself.)

In any event, when witnesses are summoned to testify about information they learned in the course of carrying out official Justice Department duties, it makes no difference whether they are current or former Justice Department officials. Federal regulations treat them the same. See, e.g., 28 C.F.R. §16.22:

In any federal or state case or matter in which the United States is not a party, no employee or former employee of the Department of Justice shall, in response to a demand, produce any material contained in the files of the Department, or disclose any information relating to or based upon material contained in the files of the Department, or disclose any information or produce any material acquired as part of the performance of that person’s official duties or because of that person’s official status without prior approval of the proper Department official in accordance with §§ 16.24 and 16.25 of this part [of the regulatory code]. [Emphasis added.]

This is common sense. The information one learns and generates as a Justice Department employee is the property of the United States government, not one’s own personal property. The government has the authority to assert any relevant privilege. What matters is that the information belongs to the government; it’s immaterial whether the person who has the information is formerly, as opposed to currently, working for the government.

There is nothing unusual about Hur’s testimony. At the conclusion of their investigations, special counsels (and their statutory predecessors, independent counsels) file reports, which attorneys general customarily publicize. It has become standard for special counsels to be asked to testify before one or both houses of Congress. Recall, for example, that special counsels Robert Mueller and John Durham both testified in recent years.

When Congress seeks the testimony of executive branch officials, including Justice Department prosecutors, it can raise separation-of-powers tensions — the clash of Congress’s oversight power and the executive’s privileged deliberations over official actions. This, as the Supreme Court explained in Trump v. Mazars (2020), is traditionally the subject of negotiations between the two governmental branches, and any disputes usually result in compromises so that each can protect its interests. (See my column on Mazars here.)

In connection with special counsels, the usual practice is that, with the Justice Department’s approval, they seek to confine their testimony to the four corners of their final reports. As these reports run hundreds of pages long (as does Hur’s), this allows for expansive testimony, even though these prosecutors try to refrain from discussing prosecutorial strategy and deliberations that are not addressed in the reports.

The media-Democrat complex continues to seethe over Hur’s description of Biden as a “well-meaning, elderly man with a poor memory,” and the implication that Hur opted not to charge Biden because the president lacks the capacity to form criminal intent. This conveniently glides past the fact that Hur did not recommend charges against Biden. Recognize it or not, this was a coup for Biden; had charges been recommended, it would likely have ended his reelection bid. (The fact that criminal charges have not ended Donald Trump’s campaign does not mean Biden would necessarily have politically survived a credible prosecutorial recommendation that he be indicted.)

As I’ve contended in criticizing Hur’s report, his rationale for opting not to recommend charges is untenable. The notion that he’s now complicit in a Trumpworld plot is silly. I expect, as is usually the case, his testimony will get skimpy on subjects about which people are curious and will leave neither partisan side satisfied . . . which doesn’t mean they won’t both go out and claim victory.