Will special counsel's comments on Biden's age change his campaign? 'Nothing new,' aide insists

Special counsel Robert Hur's report recommending against charging President Joe Biden because he could present to jurors as an "elderly man with a poor memory" united many Democrats in anger at Hur's characterization and sparked division in the party over how Biden's reelection campaign should respond to the focus on an issue that polls show concerns large swathes of the public.

Hur's report, released after a lengthy investigation into Biden's handling of classified information while out of office, painted a scathing and disputed portrait of the president's "diminished faculties," saying he couldn't remember what years he served as vice president or when his son Beau died.

Biden has forcefully contested those accounts -- "How in the hell dare he raise that?" he said after the report's release, referring to the anecdote about his son -- but multiple Democrats who spoke with ABC News said they saw danger lurking in an election cycle in which the president's age and fitness for office are already notable sore spots for him in polling.

"I think it does seem a bit unfair. But at the end of the day, it is damaging because it confirms those feelings that voters already have," said one Democratic strategist familiar with the Biden campaign's strategy, who asked not to be quoted by name because of professional relationships.

A Biden campaign official, who asked to speak without being named, sought to swat away concerns about his age.

"Underestimate the president at your own risk," this person said.

"Republican attacks on the president and his age are nothing new. They've been lobbed at him since he first ran and first won in 2019," the official added. "What we've done is prove that his experience in Washington is an asset," they said, touting legislative wins with both a Democratic and divided Congress and Biden's ability to "deliver on a pretty historic agenda."

But concerns are indeed out there -- and worsening for Biden. An ABC News poll from April-May 2023 found that 32% of Americans said Biden had the mental sharpness to serve effectively in the White House, down from 51% when he was running for president in the 2020 campaign.

Leading Democrats were publicly apoplectic following the release of Hur's report, released late last week, arguing his language and focus on Biden's memory went far beyond his purview of investigating Biden's handling and retention of classified documents upon leaving the vice presidency in 2017.

Pennsylvania Sen. John Fetterman likened it to a "smear."

Democratic critics also noted that Hur was appointed as a U.S. attorney by then-President Donald Trump -- even though current Attorney General Merrick Garland picked him as special counsel. (Hur's spokesperson previously declined to respond to criticism of his work from the president.)

"I thought legally, it was very exonerating. But it was a political report. And it was exactly the kind of report I would have written if I investigated a Republican president," said Democratic strategist James Carville, who also criticized Garland's selection of Hur.

"It felt like he was going out of his way to take some what I consider to be some very cheap jabs. You're a special counsel looking at the legality or the criminality of an issue, and you are really putting your subjective opinions about this stuff in here," one Biden bundler added.

The report immediately drew notice in Washington as the likely general election rematch between Biden and Trump escalates, with the former president on the precipice of clinching his third consecutive White House nomination.

Trump has his own problems, including voter concerns about his myriad criminal charges -- all of which he denies -- as well as his age, being just four years younger than Biden, and a push to disqualify him from the 2024 campaign because of Jan. 6.

A majority of Americans said in an ABC News/Ipsos poll released in January that they would support the U.S. Supreme Court either barring Trump from presidential ballots nationally or letting states take that step individually. He calls that "anti-democratic," and the high court is expected to soon issue a ruling on the matter.

But on the question of fitness, Trump still edges out Biden, polling has shown. Fifty-nine percent of Americans in a January ABC News/Ipsos poll said they believe both are too old to be president -- but an additional 27% said only Biden is too old to serve another term, compared to just an additional 3% for Trump.

"The most damning thing in all politics is to confirm an existing suspicion," Carville told ABC News.

Some Democrats said Biden's campaign should double down on the contrast with Trump, elevating the spate of controversies the former president faced during his own term, his recent flubs, like confusing Nancy Pelosi for Nikki Haley, and his own advanced age.

That strategy could be given a boost by Trump's ongoing legal troubles, these strategists said, as it could remind voters of the environment many seemingly sought to turn the page on by electing Biden in 2020 -- when he was repeatedly mocked by Trump as "sleepy."

"It's that type of issue that mostly motivates the people who weren't going to be with him. That doesn't mean it's not an issue," said Democratic strategist Jesse Ferguson. "When you combine everything together, Americans would far rather have someone with 81 birthdays than someone with 91 felonies."

Others expressed frustration with all the hand-wringing over Biden's age, arguing that any oxygen spent on the election should be focused on Trump's record -- while conceding that private Democrats' concerns are rampant.

"It's come up in finance committee meetings, it's come up in donor retreats, it comes up in consultant calls. And on our side, there are people who feel like this demands a sort of epic response," the bundler said. "So, stop griping and just start talking about the contrast ...This is an A or B situation. It's Joe Biden versus Donald Trump. It is as simple and as basic as that."

That appears to be Biden's strategy in the days since Hur released his report as his campaign blitzes the public and reporters with a string of emails and texts highlighting some of Trump's own mix-ups to suggest he's being held to a lower standard.

"Every single time Donald Trump opens his mouth, he's confused, deranged, lying, or worse," campaign adviser TJ Ducklo said in a news release on Friday. "Beltway reporters may be numb to Trump's horrifying candidacy defined by chaos, division, and violence -- but the American people are the ones who will suffer and die if he's allowed anywhere near the Oval Office again."

There is fertile ground for Biden's campaign to go after Trump's gaffes. Just recently, in addition to the slip about Haley and Pelosi, he called Hungarian Prime Minister Victor Orban the leader of Turkey and claimed he defeated Barack Obama in 2016 rather than Hillary Clinton, among other remarks -- the types of mistakes that Republicans seize on when uttered from Biden's lips.

Biden has also continued to underline what is expected to be a key attack on Trump all year: that he is a danger to democracy and to world stability.

"No other president in our history has ever bowed down to a Russian dictator. Let me say this as clearly as I can: I never will," Biden said on Tuesday, rebuking Trump for saying he'd "encourage" Russia to "do whatever the hell they want" to allies who don't spend enough on defense.

Responding to the backlash, Trump's campaign has maintained that as president he avoided war and "got our allies to increase their NATO spending by demanding they pay up."

Still, Democrats told ABC News that poll numbers on Biden's age and fitness warrant a more concerted effort, including putting the president in more impromptu settings like town halls or lengthy press conferences.

He has done some larger scale events in the 2024 race, including an abortion rights rally in late January. And he has traveled to a number of swing states, seemingly with key racial and economic constituencies in mind, including repeated travel to South Carolina, which boasts a large Black population, and Michigan, where he received the endorsement of the United Auto Workers union.

He's also fleshed out a more robust digital strategy, including recently joining TikTok. But that isn't the same thing, some observers said.

"I think there are voters who have real concerns about the president's fitness for the job and that the most effective way to do that is to get him out in front of voters in unscripted environments to demonstrate his mental fitness and that he is up for the job, and I think that would be by far the most effective way to demonstrate his fitness for office and assuage those concerns," said the Democratic strategist familiar with the campaign's strategy.

Biden has often thrived on retail politics throughout his lengthy political career, and the way he tells his story of enduring personal tragedy has helped him define him in public as a powerful empathizer, an attribute he flexed during his 2020 run.

"People energize Joe Biden, those people are his battery charger. And I say let Joe Biden go mingle with the American people, charge his battery, tell his story," Morgan said.

"In the end, if they lose, they're going to say, 'We should have let Joe be Joe,'" he said.

Still, that strategy presents both risk and reward, some observers warned.

Any energy coming out of in-person events could be overshadowed in the media by one gaffe, Carville said, especially with the narrative over Biden's age as baked in as it already is -- a possibility highlighted when Biden misidentified the president of Egypt at the end of remarks last week in which he sought to dismiss Hur's report.

"I don't think he can go, 'Well, let's do a town hall and ask me anything you want.' I don't think it's gonna work," Carville said. "It's certainly may work once, but it's not going to work five times. And of course, everybody's looking for the one hesitation -- the one mispronunciation. And you're gonna get it."

ABC News' Adam Carlson and Gary Langer contributed to this report.