Biden asserts executive privilege in fight over recording of special counsel interview

WASHINGTON – President Joe Biden has asserted executive privilege to deny House Republicans access to recordings of his interview with a special counsel investigating his handling of government documents, denouncing their effort as a political stunt with dire implications for federal law enforcement.

The move, announced Thursday, is intended to shield Attorney General Merrick Garland from prosecution if House Republicans succeed in holding him in contempt for refusing to turn over audio of Biden’s conversations with special counsel Robert Hur, in response to their subpoena. It comes two months after a transcript was made public.

Garland, speaking briefly with reporters outside his office, said the bid by Republicans was the latest in “a series of unprecedented and, frankly, unfounded attacks on the Justice Department” that included efforts to defund the special counsel prosecuting former President Donald Trump.

Later Thursday, the House Judiciary Committee voted 18-15 along party lines to approve a resolution recommending holding Garland in contempt of Congress for refusing to comply with its subpoenas demanding the recordings.

The House Oversight Committee also planned to hold its own contempt vote against Garland but postponed the session until the evening because so many of its members had traveled to New York to support Trump at his criminal trial in New York. The resolutions would have to go to the full House for a vote. Approval is not certain, given Republicans’ narrow majority and intraparty divisions, congressional aides said.

The actions are part of a broader effort by Republican lawmakers to scrutinize Biden administration officials after failing to impeach Biden on behalf of Trump, who has been impeached twice and indicted four times.

The executive privilege claim is certain to draw the ire of Republicans, but it is in keeping with the practice of Trump’s administration and that of his predecessor, President Barack Obama.

The Justice Department cited executive privilege in opting not to pursue charges against two of Garland’s predecessors when they were held in contempt: Eric Holder, a Democrat, in 2012 and William Barr, a Republican, in 2020. And Trump has made a broad interpretation of presidential privilege the centerpiece of his legal defense in his two federal cases.

“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,” White House counsel Ed Siskel wrote in a letter to Republican committee chairs Thursday. He also referred to Trump’s efforts to pressure department officials when he was president.

“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” he added.

Republicans said the audio was needed to pursue their long-running and wide-ranging impeachment investigation into Biden, even though Hur had cleared the president of criminal wrongdoing in the documents case, despite faulting his memory and handling of sensitive materials.

But the political value of the recording is arguably higher: It could provide damaging evidence of Hur’s characterization of the president as an “elderly man with a poor memory” and provide valuable fodder for Trump’s campaign.

Their fallback – a contempt vote – is intended to embarrass Garland by landing a glancing blow against the man Trump blames for a “witch hunt.”

Garland initiated the executive privilege claim in a letter to Biden, arguing that Hur’s interviews with the president and his ghost writer “fall within the scope of executive privilege.”

Handing them over “would raise an unacceptable risk” of undermining “similar high-profile criminal investigations – in particular, investigations where the voluntary cooperation of White House officials is exceedingly important,” he said.

Carlos Uriarte, the assistant attorney general for legislative affairs, urged Reps. Jim Jordan, R-Ohio, who leads the House Judiciary Committee, and James Comer, R-Ky., who leads the Oversight Committee, to withdraw their contempt resolutions. He cited the decision by the House members to forgo contempt proceedings in 2008 when President George W. Bush asserted executive privilege after his vice president, Dick Cheney, was subpoenaed.

Republicans could challenge the executive privilege claim in federal court, though it might put them in the awkward position of contradicting Trump’s expansive assertions of privilege in his two federal criminal cases.

Still, they expressed some satisfaction that their contempt gambit forced Biden to take steps to prevent his own utterances from being heard in public.

“There is no ground whatsoever to withhold the audio tape,” said Rep. Dan Bishop, R-N.C., a member of the Judiciary Committee. “That tape must be quite something if the administration and the president has decided to assert executive privilege to keep it from the committee in the course of an impeachment inquiry.”

In February, Hur, a former Justice Department official in the Trump administration, dropped a political bomb into the 2024 campaign, releasing a nearly 400-page final report summing up his investigation. The document is an excruciatingly detailed assessment of Biden’s faulty memory that overshadowed his conclusion: Biden, unlike Trump, should not face criminal charges.

The Republican argument for releasing the recording, laid out in the 12-page resolution under consideration Thursday, represents a mashup of motives and investigations.

Republicans assert that the audio is needed to resolve possible discrepancies between the transcript and recording. At various points, they say, it would offer “unique and important information” that would aid in enacting change to future special counsel investigations or allow them to get to the bottom of his family’s business dealings, even though that was never part of Hur’s investigation.

But mostly, they suggest that reading Biden’s words is not as good as hearing them.

The transcripts “do not reflect important verbal context, such as tone or tenor, or nonverbal context, such as pauses or pace of delivery,” committee staff members wrote.

In the past, Garland and other department officials have shown a willingness to defuse conflicts by reaching compromises with the House. Not this time.

Republicans also have said they need the audio to examine the president’s mental acuity, referring to Hur’s characterization in the report of Biden as an older, forgetful man, which he said might elicit sympathy from a jury. They suggested Biden might have been charged criminally otherwise.

In fact, what Hur’s report found was that while there was some evidence consistent with a conclusion that Biden had willfully retained classified information without authorization, that evidence fell short of what would be necessary to prove that he had done so. Hur found that the evidence was also consistent with innocent explanations for his actions.

Rep. Glenn Ivey, D-Md., who sits on the Judiciary Committee, accused Jordan of abusing his power – and imperiling future legislative oversight efforts. Democrats also called Jordan a hypocrite for trying to insist that Garland comply with demands from his subpoena, when he had refused to comply with a subpoena from the House Jan. 6 committee in the previous Congress.

If nothing else, the threat of contempt put Garland, who has sought to distance himself from partisan politics, in the uncomfortable position of being seen as a legal and political screen for his boss, and himself.

Garland, a former federal judge, cast his decision as an attempt to protect his employees, rather than his employer, during a back-and-forth with reporters on the fifth floor of the Justice Department’s headquarters.

“The only thing I can do is continue to do the right thing,” Garland said. “I will protect this building and its people.”

This article originally appeared in The New York Times.