White House cites executive privilege over tapes of special counsel's Biden interview

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Attorney General Merrick Garland / Getty Images

President Biden has asserted executive privilege over the audio recordings of his interview with special counsel Robert Hur about Biden's handling of classified documents, according to the White House and the Justice Department.

The move comes as the Republican-led House Judiciary and Oversight committees are expected to advance a resolution to hold Attorney General Merrick Garland in contempt of Congress for refusing to provide the panels with the interview audio.

"Because of the President's longstanding commitment to protecting the integrity, effectiveness, and independence of the Department of Justice and its law enforcement investigations, he has decided to assert executive privilege over the recordings," Edward Siskel, counsel to the president, wrote in a letter to Rep. Jim Jordan, chairman of the House Judiciary Committee, and Rep. James Comer, chairman of the House Oversight Committee.

House Republicans are demanding the department turn over audio recordings of the interview special counsel Hur conducted with Biden in October 2023, about Biden's handling of classified documents after leaving the Obama administration. They also want the audio recording of Hur's interview with Biden's ghostwriter, Mark Zwonitzer.

In his report, Hur described Biden as "an elderly man with a poor memory," remarks that angered the White House and its Democratic allies. House Republicans have pressed their demands for the audio itself, saying the committees get to determine what materials they need for their investigation, not the White House.

At a hearing Thursday, Chairman Jordan of the Judiciary Committee asserted the recordings are necessary because "the transcripts alone are not sufficient evidence of the state of the president's memory."

The judiciary panel went on to vote along party lines to recommend Garland be held in contempt.

Chairman Comer, of the Oversight Committee, said in a written statement that the White House had already waived the privilege by giving lawmakers a transcript of the Biden interview.

"Today's Hail Mary from the White House changes nothing for our committee," Comer added. "The House Oversight Committee will move forward with its markup of a resolution and report recommending to the House of Representatives that Attorney General Garland be held in contempt of Congress for defying a lawful subpoena."

In his letter, Siskel noted disclosure of materials like the audio would make it less likely that witnesses in future high-profile investigations will voluntarily cooperate. And, he noted: "The absence of a legitimate need for the audio recordings lays bare your likely goal—to chop them up, distort them, and use them for partisan political purposes. 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."

Siskel added: "Rather than demonstrating respect for the rule of law, this contempt proceeding is just the latest in the Committees' damaging efforts to undermine the very independence and impartiality of the Department of Justice and criminal justice system that President Biden seeks to protect."

At the Justice Department Thursday morning, Attorney General Garland told reporters that DOJ had gone above and beyond the call of duty to provide information to the Republican-led House panels.

"We have gone to extraordinary lengths to ensure that the committees get responses to their legitimate requests but this is not one," Garland said. "To the contrary, this is one that would harm our ability in the future to successfully pursue sensitive investigations."

Earlier, Garland wrote in a letter to Biden that the "audio recordings of your interview ... fall within the scope of executive privilege." His letter also cited audio recordings as an important investigative tool in high-profile investigations.

The Justice Department already has provided Congress a transcript of the interview, helped facilitate Hur's testimony before the committees, handed over two classified documents requested by the panels and provided correspondence regarding the special counsel's inquiry.

"In short, the department has responded to each of the four requests in your subpoenas," Assistant Attorney General Carlos Felipe Uriarte said in a letter to the committees.

But he said the committees have failed to identified a need for the audio files of Biden's interview with Hur that would "serve the asserted purposes of your investigations."

He also pushed back on House Republicans' plan to hold Garland in contempt over the matter, saying "a contempt citation is not justified on this record."

"It is the longstanding position of the executive branch held by administrations of both parties that an official who asserts the President's claim of executive privilege cannot be prosecuted for criminal contempt of Congress," Uriarte said in his letter to the panels.

"Production of these recordings to the Committees would raise an unacceptable risk of undermining the Department's ability to conduct similar high-profile criminal investigations-in particular, investigations where the voluntary cooperation of White House officials is exceedingly important," he wrote.

Uriarte urged the committees to back away from their contempt votes, and noted that there is precedent for doing so. He said that in 2008, the House Oversight Committee withdrew a contempt vote after President George W. Bush asserted executive privilege over the record of a special counsel interview of the vice president, Dick Cheney, in an investigation that centered on the disclosure of the identity of a CIA official.

In his brief public remarks Thursday morning, the attorney general cast the House move as part of a broader, partisan campaign against the institution of the Justice Department. Garland alluded to remarks by House members trying to defund the office of special counsel Jack Smith, who has obtained two indictments of former President Donald Trump.

"There have been a series of unprecedented and frankly unfounded attacks on the Justice Department," Garland said. "This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files is just the most recent. The effort to threaten to defund our investigations and the way in which there are contributions to an atmosphere that puts our agents and our prosecutors at risk, these are wrong."

Garland said he would continue to "protect this building and its people."