Hawley says Garland should invoke 25th Amendment if DOJ declines to charge Biden: 'One or the other'

Senator Josh Hawley, R-Mo., said that Attorney General Merrick Garland is at a crossroads after Justice Department Special Counsel Robert Hur declined to charge President Joe Biden for mishandling classified documents because of his mental state. 

Hur’s report, which was made public on Thursday, found that after a months-long investigation, Biden "willfully retained and disclosed classified materials," but he concluded that no criminal charges were warranted, because based on "direct interactions with and observations of" the president, Hur and his team said "[i]t 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."

Hawley, who also served as attorney general of Missouri from 2017 to 2019, said Friday that Garland "can’t have it both ways" by not charging the president and also declining to recommend invoking Section 4 of the 25th Amendment, which authorizes the vice president and a majority of the president's cabinet or Congress to decide whether the president is unable to perform their duties. 

"I'm calling on [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," Hawley told Fox News Digital in an interview. 

BIDEN SAYS HIS MEMORY IS 'FINE,' HE IS 'MOST QUALIFIED PERSON IN THIS COUNTRY' TO BE PRESIDENT

Sen. Josh Hawley, left, and Attorney General Merrick Garland. (Getty Images)

"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," Hawley said. 

Hawley noted that every prosecutor has to weigh whether they can get a conviction, which ultimately informs the charging decision. 

But in Hawley’s view, what is "unique" in Hur’s case is that he concluded that the elements of a crime were present, but chose not to charge based on the president’s mental state.

"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," says Hawley. 

"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," Hawley added. 

BIDEN 'DID NOT REMEMBER WHEN HE WAS VICE PRESIDENT,' WHEN HIS SON BEAU DIED, DURING SPECIAL COUNSEL INTERVIEWS

Attorney General Merrick Garland (Chip Somodevilla/Getty Images)

Garland has ultimate authority over whether to agree with Hur’s recommendations or to pursue charges against the president. 

The Justice Department did not immediately respond to Fox News Digital’s request for comment. 

Hawley says that Garland’s "only recourse," should he decide not to press charges — noting that DOJ brought charges against former president Donald Trump on "precisely the same grounds — is to go to the rest of Biden’s cabinet members to invoke the 25th amendment. 

"It can't be that . . . '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," Hawley charged. 

TRUMP DEMANDS DOJ 'IMMEDIATELY' DROP CHARGES AGAINST HIM IN CLASSIFIED DOCS CASE AFTER BIDEN DECISION

President Biden in a press conference late Thursday night addressed the report saying his memory is ‘fine,’ and defended his re-election campaign, saying he is the ‘most qualified person in this country to be president.’ (Chris Kleponis/CNP/Bloomberg via Getty Images)

President Biden in a press conference late Thursday night addressed the report, saying his memory is "fine," and defended his re-election campaign, adding that he is "the most qualified person in this country to be president."

Hur described Biden as a "sympathetic, well-meaning, elderly man with a poor memory." 

Biden said Thursday night that he agreed. 

"I'm well-meaning, and I'm an elderly man, and I know what the hell I'm doing," Biden said. "I've been president. I put this country back on its feet. I don't need his recommendation."

Biden added: "My memory is fine."

This image from Special Counsel Robert Hur’s investigation released by the Department of Justice on Thursday, February 8, 2024, shows Joe Biden’s garage storage closet in his Delaware home on December 21, 2022. (U.S. Department of Justice)

Meanwhile, Hur said in the report that Biden, during his interview with the special counsel's team, could not remember key details, such as when he was vice president. 

"In his interview with our office, Mr. Biden's memory was worse," the report states. "He did not remember when he was vice president, forgetting on the first day of the interview when his term ended ('if it was 2013 — when did I stop being Vice President?'), and forgetting on the second day of the interview when his term began ('in 2009, am I still Vice President?')."

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"He did not remember, even within several years, when his son Beau died," the report continued. "And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he ‘had a real difference’ of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Biden cited approvingly in his Thanksgiving memo to President Obama."

"In a case where the government must prove that Mr. Biden knew he had possession of the classified Afghanistan documents after the vice presidency and chose to keep those documents, knowing he was violating the law, we expect that at trial, his attorneys would emphasize these limitations in his recall," the report said.

The White House did not immediately respond to Fox News Digital’s request for comment. 

Hawley's comments come after Rep. Claudia Tenney, R-N.Y., sent a letter to Garland Thursday night, sharing her "grave concerns" following Hur's report.

"After concluding that President Biden knowingly and willfully removed, mishandled, and disclosed classified documents repeatedly over a period of decades, Mr. Hur nevertheless recommended that charges not be brought against him," Tenney wrote. "Special Counsel's reasoning was alarming."

Fox News Digtial's Brooke Singman contributed to this report.