No, special counsel didn't declare Joe Biden 'mentally unfit' to stand trial | Fact check

The claim: Joe Biden was declared 'mentally unfit' to stand trial

A Facebook ad distributed to more than 20,000 screens makes a claim about President Joe Biden's mental competency.

"First president in history declared mentally unfit to stand trial," reads text on an image of Biden.

The ad is being distributed by the conservative group Turning Point Action, which also shared the same image on its Facebook page, which was shared more than 100 times in six days. A similar claim on Instagram received thousands of likes.

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Our rating: False

A report released by the special counsel investigating Biden's handling of classified documents does not say Biden is mentally unfit to stand trial. The special counsel has no authority to make such a judgment, an expert told USA TODAY.

Special counsel has no authority to declare Biden unfit for trial

Justice Department special counsel Robert Hur released a report Feb. 8 indicating Biden won't face charges for his handling of classified documents, as USA TODAY previously reported.

The report also includes multiple comments about the 81-year-old president's age and memory. It describes Biden as an elderly man with "diminished capacities," including memory loss. Biden and his administration pushed back against the report, with Biden declaring his "memory is fine" during a televised address.

The special counsel's report does not say Biden is mentally unfit for trial, as the Facebook post claims. The report makes no determination about Biden's competency to stand trial – a phrase with a specific legal definition – and that was not its purpose.

The report at one point describes how Hur considered that "Biden would likely present himself to a jury … as a sympathetic, well-meaning, elderly man with a poor memory," but it does not say Biden's competency would be an issue at trial. The conclusion of the 388-page report is a single line that reads, "For the foregoing reasons, we conclude that no criminal charges are warranted in this matter."

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The special counsel does not have the authority to declare Biden unfit to stand trial, Michael Heiskell, president of the National Association of Criminal Defense Lawyers, told USA TODAY.

The process that would yield such a declration is a formal one that involves a court.

Heiskell said there is typically a court-ordered mental health evaluation followed by a hearing to decide whether the defendant in question is "suffering from a mental disease or defect rendering him mentally incompetent."

A judge decides the issue based on whether the defendant has "a rational as well as factual understanding of the proceedings" and the ability to consult with their attorney "with a reasonable degree of rational understanding," Heiskell said.

Any defendant found incompetent to stand trial can still be prosecuted if treatment, including medication, can restore their competency.

USA TODAY reached out to the social media user who shared the post for comment but did not immediately receive a response.

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This article originally appeared on USA TODAY: Biden declared 'mentally unfit' for trial is false claim | Fact check