Left: Special counsel Robert Hur listens to recorded remarks of President Joe Biden during a hearing on Capitol Hill in March (AP Photo/Nathan Howard, File).
One day after President Joe Biden announced that he will not run for reelection, the U.S. Department of Justice on Monday told a federal judge presiding over a Freedom of Information Act (FOIA) lawsuit that it recently “learned” about “verbatim” transcripts of a Biden biographer’s audio recordings that were part of special counsel Robert Hur’s classified documents probe.
In February, Hur released a report spanning hundreds of pages that pointed out that DOJ policy “foreclose[s] criminal charges against a sitting president” and that, in any event, he was not recommending charges against Biden though there was evidence he “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”
Those documents related to U.S. “military and foreign policy in Afghanistan” and Biden’s “handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods.”
DOJ policy and a “shortage of evidence” aside, especially when compared to “serious aggravating” alleged facts in Donald Trump’s since tripped-up Mar-a-Lago case, Hur wrote that a jury likely wouldn’t want to convict a “sympathetic, well-meaning, elderly man with a poor memory,” pointing to the special counsel’s recorded five-hour interview of Biden in support of that characterization.
Ever since, litigation on multiple fronts involving conservative groups like the Heritage Foundation and Judicial Watch, plus a coalition of mainstream media organizations, has requested the disclosure of the Biden-Hur interview audiotapes, but the DOJ has resisted the release of those files, citing privacy concerns for an uncharged individual, the threat of “deepfakes,” the broad authority of presidents to claim executive privilege, and more.
Republican lawmakers separately sued in attempt to force U.S. Attorney General Merrick Garland to comply with a subpoena, after Garland recommended that Biden assert executive privilege — including over the Biden ghostwriter’s interview with the special counsel.
Over the course of another Heritage Foundation FOIA lawsuit that started in March, DOJ and the plaintiff clashed at a June hearing over the “adequacy of the search” for alleged responsive records of some “70 hours of audio recordings” of Biden speaking with his biographer Mark Zwonitzer.
As chronicled by Politico, DOJ represented that it would be difficult to review the recordings for classified information in absence of a transcript.
That calculus appears to have changed.
U.S. District Judge Dabney Friedrich, a Donald Trump appointee who memorably ruled that special counsel Robert Mueller was lawfully appointed, set a status conference for Tuesday morning, the day after the DOJ filed a notice on their search, the court docket reviewed by Law&Crime shows.
In the Monday notice, the DOJ told the judge that their previous statement — “[U]nlike the case of the special counsel and his interviews with the president, we don’t have some transcript that’s been created by the [S]pecial [C]ounsel that we can attest to its accuracy” — was undercut, in no small part thanks to special counsel Hur.
“In the past few days, in the course of processing the portions of the Biden-Zwonitzer audio recordings that the parties agreed to, the Department located six electronic files, consisting of a total of 117 pages, that appeared to be verbatim transcripts of a small subset of the Biden-Zwonitzer audio recordings created for the SCO by a court-reporting service,” the notice said. “Having learned about the transcripts, the Department planned to contact an individual with knowledge of the SCO files with whom the Department had previously consulted. However, the individual was out of the office and unavailable. Accordingly, the Department contacted Robert Hur to ask about the nature of the transcripts.”
“Mr. Hur confirmed that the identified files were in fact transcripts of a subset of the Biden-Zwonitzer audio recordings, created by a court-reporting service at the SCO’s request. These transcripts were indeed the transcripts referred to in the Hur Report, though they were not cited in any of the Passages in Plaintiffs’ FOIA request,” the DOJ continued.
Chapter 17 of Hur’s report addressed at length a decision not to charge Zwonitzer for obstruction after he “deleted digital audio recordings of his conversations” with Biden from the period where he ghostwrote the 2017 memoir “Promise Me, Dad,” this after learning of the special counsel’s appointment but before the FBI reached out to him.
“The recordings had significant evidentiary value” for the willful retainment of classified documents investigation, Hur wrote. “But Zwonitzer turned over his laptop computer and external hard drive and gave consent for investigators to search the devices. As a result, FBI technicians were able to recover deleted recordings relating to Promise Me, Dad.”
“Zwonitzer kept and did not delete or attempt to delete, near-verbatim transcripts he made of some of the recordings,” the report continued. “He also produced those detailed notes to investigators.”
Later in the chapter, Hur said the biographer kept “near-verbatim transcripts that contain incriminating information about Mr. Biden, including transcripts of the February 16, 2017 conversation where Mr. Biden said he ‘just found all the classified stuff downstairs.””
According to the DOJ’s notice, Hur clarified what evidence his report “relied upon”:
Having contacted Mr. Hur to gather information about the transcripts, the Department concluded that it was appropriate under the circumstances to ask him what records he relied upon for the highlighted statements in Plaintiffs’ FOIA request. Mr. Hur identified two records that he relied upon in addition to those already identified by the Department: (1) the newly-located, verbatim transcripts of the Biden-Zwonitzer audio prepared by a court-reporting service at the SCO’s request, and (2) with respect to the Afghanistan memo—a memo that the Department previously identified as responsive, and that Plaintiffs agreed to scope out of their request—a specific portion of Mr. Biden’s handwritten notebook related to the memo. Mr. Hur also confirmed that, in making the statements highlighted in Plaintiff’s FOIA request that drew conclusions about the Biden-Zwonitzer audio recordings, he had relied on the Biden-Zwonitzer audio recordings generally.
Read the DOJ notice here.
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