President Joe Biden (left) pictured on May 12, 2024 in Delaware (AP Photo/Manuel Balce Ceneta), Attorney General Merrick Garland (right) speaks on May 13, 2024, as House Republicans are set to advance contempt of Congress charges against Garland for his refusal to turn over unredacted audio of a special counsel interview with President Joe Biden. (AP Photo/Jose Luis Magana, File)
A lawsuit is brewing in federal court as President Joe Biden has asserted executive privilege over audio recordings of his five-hour interview with special counsel Robert Hur in the mishandling of classified documents probe that ended without charges. While House Republicans and the mainstream media are in agreement that the recordings should be made public, the Biden administration is fighting disclosure by claiming the audio will only be distorted by political partisans out to paint the president as unfit to hold office.
Last Thursday, when Biden invoked executive privilege over the tapes, his White House lawyer Edward Siskel wrote in a letter to House Judiciary Committee Chairman Rep. Jim Jordan, R-Ohio, and House Oversight Committee Chairman Rep. James Comer, R-Ky., that U.S. Attorney General Merrick Garland “requested” the privilege assertion and that the president followed through to block the release of the audio.
Recall that when special counsel Robert Hur completed a 388-page report in February, he outlined his reasons for not pursuing charges over the president’s possession of Afghanistan documents even though Biden “willfully retained and disclosed classified materials after his vice presidency when he was a private citizen.”
Hur drew a distinction between the Biden case and the Mar-a-Lago federal case against former President Donald Trump.
“Unlike the evidence involving Mr. Biden, the allegations set forth in the indictment of Mr. Trump, if proven, would present serious aggravating facts,” the Hur report said, spelling out the differences. “Most notably, after being given multiple chances to return classified documents and avoid prosecution, Mr. Trump allegedly did the opposite.”
But Hur, pointing to his interview of Biden, also characterized the president as a “sympathetic, well-meaning, elderly man with a poor memory” whom jurors wouldn’t want to convict.
“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It 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,” the report said. “We conclude the evidence is not sufficient to convict, and we decline to recommend prosecution of Mr. Biden for his retention of the classified Afghanistan documents.”
In the White House letter to Congress, attorney Siskel emphasized that Biden did not assert executive privilege over Hur’s report and offered transcripts of the interview to lawmakers. The lawyer said that should be enough.
“As the Department has explained repeatedly, these materials—particularly the transcripts—more than satisfy your articulated needs for this information,” the letter said. “The President has a duty to safeguard the integrity and independence of Executive Branch law enforcement functions and protect them from undue partisan interference that could weaken those functions in the future.”
Deeming the demands for the audio illegitimate, the letter concluded that House Republicans’ “likely goal” is to get the audio recordings and “chop them up, distort them, and use them for partisan political purposes” in an election year.
“Demanding such sensitive and constitutionally-protected law enforcement materials from the Executive Branch because you want to manipulate them for potential political gain is inappropriate,” the letter continued, also panning efforts to hold AG Garland in contempt.
Republican lawmakers aren’t the only ones who have claimed an interest in the audio recordings, however. Two conservative groups, the Heritage Foundation and Judicial Watch, as well as multiple mainstream media organizations are suing to obtain the tapes.
On the eve of Biden’s privilege assertion, CNN, ABC, the Associated Press, CBS News, The Wall Street Journal, NBC, Reuters, the Washington Post, and more, filed an amended complaint in Washington, D.C., federal court.
The media plaintiffs, whose Freedom of Information Act case is consolidated with litigation brought by Judicial Watch and the Heritage Foundation, argued that the audio is needed to scrutinize Hur’s non-charging decision and predicted the tapes “will shed light on Hur’s controversial characterization of Biden as an ‘elderly man with a poor memory,’ which Hur claimed would make it ‘difficult to convince a jury that they should convict him.””
Notably, the suit seeks “all audio and video recordings,” if there are any videos, of Biden’s interview.
“Hur ultimately interviewed Biden in person – for approximately five hours, split across two days – on October 8-9, 2023,” the suit said. “The interview was recorded, though as of this filing DOJ has not yet made public whether that recording was solely audio or both audio and video.”
The next day, Friday, the Heritage Foundation and its lawyers asked the court to set an “expedited briefing schedule” now that Republican-led panels have voted in favor of having the whole House of Representatives vote on whether to hold Garland in contempt.
“[T]he fact that the Committees have now been forced to recommend that the full House hold the Attorney General in contempt of Congress adds to the compelling and already extraordinary public interest in the disclosure of the audio recording of the President’s interview with Special Counsel Robert K. Hur,” the emergency motion said, citing the nearing election and the audio’s “clear public salience […] regardless of one’s political affiliation or view.”
While acknowledging that the proposed expedited schedule “is aggressive,” the Heritage Foundation said the “exigency of the moment and the Department’s clear gamesmanship warrants it.”
The DOJ, for its part, responded Sunday by digging its heels in and urging the court to reject the proposed expedited schedule that was denied once before.
“Heritage’s motion is essentially a motion for reconsideration, seeking what amounts to the same briefing schedule that Heritage had previously requested, and the Court rejected. Heritage’s motion is grounded on its speculation that since the president has recently invoked executive privilege over the audio recording, that ‘the Department d[oes] not need the time to prepare a position and declarations it twice told the Court it did,’” the DOJ said. “Heritage twice accuses the government of ‘misleading’ the Court and participating in “clear gamesmanship.’”
“Heritage’s accusations are baseless and they are wrong,” the DOJ continued.
According to the government, Biden’s invocation of executive privilege actually works against the Heritage Foundation’s demands to speed up the FOIA lawsuit.
“The Department still must prepare a summary judgment motion explaining why the Department can properly withhold the materials consistent with the FOIA. In doing so, the Department must develop numerous legal arguments and must support its factual assertions with an appropriate declaration or declarations,” the DOJ said. “Indeed, it will now need to do so accounting for the presidential assertion of privilege. This arguably would militate for more time, not less, although the Department is not seeking that.”
The government asserted that Heritage’s attempted “second bite at the apple should be denied.”
Fights over executive privilege and contempt of Congress threats are not exactly rare when taking recent history into account.
A House panel led by Democrats voted in 2019 to hold then Attorney General Bill Barr in contempt for refusing to hand over documents that would shed light on why the Trump administration’s Commerce Department added a citizenship question to the 2020 census.
At the time, Rep. Jordan cautioned that contempt proceedings were a “powerful tool” that “should be used responsibly.”
Also in 2019, House Democrats threatened to hold Barr and former White House counsel Don McGahn in contempt for stonewalling demands for the full report and underlying evidence from special counsel Robert Mueller’s Russia investigation.
The following year, former President Trump and his lawyers fighting his Ukraine impeachment claimed that executive privilege issues complicated whether former national security adviser John Bolton could testify.
Even after Trump was out of office, he attempted to claim executive privilege over documents from his presidency to upend the Mar-a-Lago investigation and shield Jan. 6-related communications from public view.
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