Sen. Josh Hawley (R-Mo.) said Friday that Attorney General Merrick Garland should invoke the 25th Amendment if he declines to charge President Joe Biden for the president’s handling of classified documents.

Special Counsel Robert Hur’s report found that President Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” but that no criminal charges were warranted.

In deciding not to charge the president, Mr. Hur said that a jury likely wouldn’t convict the president in part because he would present himself as “a sympathetic, well-meaning, elderly man with a poor memory.”

Commenting on the report, Mr. Hawley told Fox News on Feb. 9 that he believes the attorney general should act in accordance with the provisions outlined in the U.S. Constitution.

“I’m calling on [Mr. Garland] publicly now to do what I think is required under the law in the Constitution … either charge the president, or he will go to the cabinet and tell them: ‘I believe we have to invoke the 25th Amendment.’ He’s got to do one or the other,” the senator said.

“If he doesn’t, it will just confirm what everybody thinks, which is that there are two tiers of justice and that Garland himself is completely complicit in the corruption of this administration,” he added.

Mr. Hawley highlighted that the special counsel has decided not to press charges despite concluding there were “elements of a crime” in President Biden’s handling of classified documents.

“He concluded that the elements of a crime were present, namely that the president had willfully retained and disclosed classified information, so he knew it. I mean, the report makes it very clear he knew that it was classified information, this was done over years and decades—not just a couple of months—and he willfully did it.

“But he ultimately recommends against prosecution, not because he didn’t do it, but because, basically, Biden is mentally unfit to be prosecuted. Because he doesn’t think that he can get a jury to ultimately convict, because the president is so mentally unstable,” he said.

Mr. Hawley said that Mr. Garland, having the ultimate authority on whether to agree or disagree with Mr. Hur’s decision, should invoke the 25th Amendment if he chooses not to press charges against the president.

“It can’t be … ‘He’s totally fit to continue in office, but we’re not going to prosecute him.’ I mean, that’s just—that would be the most brazen miscarriage of justice and degradation of the rule of law,” he added.

25th Amendment

The 25th Amendment lays out the constitutional process for removing a president who has been deemed unable to discharge the responsibilities of his office.

The amendment can be invoked by the vice president and a majority of the president’s cabinet—“or of such other body as Congress may by law provide”—by transmitting their written declaration of the president’s incapacity to president pro tempore of the Senate and the speaker of the House. At that point, the vice president would assume the office of acting president.

Rep. Claudia Tenney (R-N.Y.) has also issued a letter to Mr. Garland calling for President Biden’s removal from office via the 25th Amendment. She said that Mr. Hur’s reasoning not to press charges was “alarming.”

“I need not tell you that selective prosecution is morally, ethically, and legally prohibited,” Ms. Tenney wrote. “We don’t prosecute or decline to prosecute people based on their personalities, or on the public’s anticipated perception of them. If Special Counsel finds that the evidence forms a reasonable basis to bring charges, he must do so.”

The decision also exposes an inconsistency in the Justice Department’s treatment of President Biden and former President Donald Trump, who is currently being prosecuted by special counsel Jack Smith in a very similar case.

Ms. Tenney, noting this disparity, wrote, “The Department of Justice cannot ethically bring charges against former president Trump because he has mental acuity and a forceful personality and decline to bring charges against President Biden because of his cognitive decline. President Biden needs to be charged. Unless he is not mentally competent to stand trial.”

Samantha Flom contributed to this report.

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