My criminal law prof used to enter the classroom, walk up to chalkboard and write “mens rea.” He would lecture, ask questions, etc and never once refer to the words on the chalkboard. At the end of class, he’d erase the “mens rea.”
I guess his point was a guilty mind, the criminal intent, at the time of the act was critical. Whether Biden is incompetent now is irrelevant. That is a defense decision for trial via motions etc. Even now, Biden is resisting that assessment.
Why would a prosecutor be asserting it on behalf of the defense? Would a prosecutor not charge a defendant because the defendant said he didn’t do it?
But Hur, like Comey with Hillary, was in a tough spot. They know those defendants clearly violated the law, but they had to come up with some official sounding legal bullshit for not prosecuting them.
If the fact that a DC jury would never convict a Democrat is a reason not to charge, no Democrat will ever be charged. Conversely, if a DC jury will convict any Republican for a recently concocted non-crime, then prosecutions of Republicans is limited only be the imagination of the politically corrupt DOJ.
This is not the moral corruption of the jury system but of the moral corruption of DC courts. These political persecutions should never reach the jury. Without doubt, defense lawyers present a flurry of non-frivolous pre-trial motions and these DC district and appellate judges reject them all.
I recall Haldeman, Erlichman, Ollie and AG Josh Mitchell; openly conceding they were “toast” when prosecutors filed charges against them in DC. I believe most were set aside on appeal.