© Francis Chung/PoliticoSpecial Counsel Robert Hur
The White House counsel's office notified House GOP investigators of the move hours before Republicans were expected to recommend holding Attorney General Merrick Garland in contempt of Congress for refusing to hand over the audio. Rather than changing the GOP's plan, the privilege assertion sparked a wave of outrage from Republicans, who are moving forward with their planned contempt vote.
Hur's description of his interviews with Biden — laid out in a 345-page report released in February — fueled a firestorm over the president's memory and mental fitness. In that report, Hur said Biden could potentially defend himself in court, if charges were recommended, by appealing to jurors as a "well-meaning, elderly man with a poor memory." Biden pushed back with a fiery news conference defending his acuity.
While the transcripts of the interviews have already been released, Biden's effort to block the recordings puts him in a politically awkward position: He has insisted that Hur has mischaracterized the interviews but is nonetheless trying to maintain secrecy over the raw audio.
White House Counsel Ed Siskel wrote in the letter to Republican House leaders Thursday morning revealing Biden's decision:
"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."Garland asked Biden to block release of the audio recordings, citing concerns that making them public could prompt high-ranking White House officials to be less cooperative in future investigations. In a letter to Biden dated Wednesday, he wrote:
"The Committees' needs are plainly insufficient to outweigh the deleterious effects that productions of the recordings would have on the integrity and effectiveness of similar law enforcement investigations in the future."During a brief exchange with reporters at the Justice Department Thursday morning, Garland defended the privilege claim as a principled one and suggested the House was demanding the audio as part of a broader campaign to delegitimize the department and federal law enforcement more generally.
Garland said:
"We have gone to extraordinary lengths to ensure that the committees get responses to their legitimate requests, but this is not one. To the contrary, this is one that would harm our ability in the future to successfully pursue sensitive investigations."White House Press secretary Karine Jean-Pierre dismissed scrutiny of the decision, telling reporters on Thursday:
"For one, the transcript, as you all know, is already out there. The attorney general made it clear that law enforcement files like these need to be protected, and so the president made his determination at the request of the attorney general."Jean-Pierre declined to address questions about the White House's concern that Republicans would use the audio for political purposes, saying she didn't "want to dive into the specific point" and referring further inquires to the White House counsel's office.
Republicans are reviewing Hur's investigation and Biden's handling of classified documents as part of a sweeping impeachment inquiry into the president. Though the broad impeachment effort has largely stalled thanks to skepticism from a broad swath of Republican lawmakers, Judiciary Chair Jim Jordan (R-Ohio) and Oversight Chair James Comer (R-Ky.) are still quietly investigating.
And the arguments from DOJ and the White House did little to tamp down Republican angst, from Donald Trump's campaign to House Republican leadership. The Judiciary Committee is meeting on Thursday morning to vote on its contempt recommendation for Garland; the Oversight Committee is scheduled to meet on Thursday evening to recommend the same.
However, Biden's action on Thursday effectively precludes any criminal prosecution of Garland for failing to comply with the Hill subpoenas.
Republicans lobbed criticism largely from two angles: That Biden was afraid of the audio recordings' release because they believe it would add fodder to Hur's description of his memory, and that the privilege assertion is designed to squash congressional oversight.
Speaker Mike Johnson told reporters on Thursday:
"President Biden is apparently afraid for the citizens of this country and everyone to hear those tapes. They obviously confirm what special counsel is about and would likely cause, I suppose, in his estimation such alarm with the American people that the President is using all of his power to suppress their release."Steven Cheung, a Trump campaign spokesperson, accused Biden of having "irretrievably politicized the key constitutional tenet of executive privilege" and trying to use it to "run political cover for Crooked Joe."
Jordan argued that transcripts, which the DOJ has already handed over, "are not sufficient evidence of the state of the president's memory." The White House and Biden's counsel have both contested Hur's descriptions of Biden and asked him to correct the report. "This last-minute invocation does not change the fact that the attorney general has not complied with our subpoena," Jordan said.
Comer added in a statement on Thursday:
"It's a five-alarm fire at the White House. ...Today's Hail Mary from the White House changes nothing for our committee."The early-morning notification to Congress of Biden's privilege assertion isn't the Biden administration's first quick move regarding Hur's probe. The administration previously handed over the transcript of Hur's interview with Biden just hours before the former special counsel testified before Congress. The approach strategy clearly rankled Republicans on Thursday.
"This happens to be a pattern," Rep. Kelly Armstrong (R-N.D.) said, accusing the DOJ of trying to "pick and choose which pieces of evidence" the committee gets as part of its investigation.
Biden met with Hur for five hours last October and was questioned in detail about his practices around the use of classified documents and his recollections of where they were kept. In a report released on Feb. 8, the Justice Department announced that Hur had decided not to seek any charges in the case. Standing department policy also precludes any criminal charges against a sitting president.
However, Hur's characterization of Biden in the report as "a sympathetic, well-meaning, elderly man with a poor memory," triggered a prolonged public discussion about the 81-year-old president's mental acuity as well as the possible political motives of the prosecutor, who was named by Garland but is a Republican and former appointee of President Donald Trump.
Biden opted against asserting executive privilege over the transcript of his interview, despite his fresh effort to block access to the audio. And he asserted no privileges over any of Hur's report or its characterizations of the interview.
POLITICO and other news organizations have requested the recordings and other records from the probe, and at least two lawsuits have been filed under the Freedom of Information Act. It is unclear how the Justice Department will seek to defend Biden's secrecy bid in that litigation.
Biden has also routinely waived executive privilege to permit congressional and Justice Department investigators to access documents and witnesses from Donald Trump's administration, determining that an invocation of privilege was unwarranted.
That has included decisions against blocking former high-level Trump White House advisers from testifying to a grand jury convened by special counsel Jack Smith. It also included multiple determinations against asserting privilege to shield Trump White House documents from the Jan. 6 select committee.Garland did not directly address a reporter's question Thursday about whether his request and the president's concurrence reflected a conflict of interest due to the way the issue could affect them personally. However, when cabinet members have faced possible contempt citations in the past, they have sometimes appealed directly to the president to seek the legal protection offered by an assertion of executive privilege.
Many of those documents and witness interviews became central to the charges that Trump has faced in Washington, D.C. and Florida.
The feds have already scrubbed Biden's flubs in transcripts. They probably did it here as well, but on a massive scale.