President Joe Biden has asserted executive privilege over audio recordings from special counsel Robert Hur‘s investigation into Biden’s handling of classified documents that further raised questions about the commander-in-chief’s mental acuity as he runs for a second term.
The decision was conveyed to House leaders on Thursday in the hours before a pair of GOP-led committees were expected to move forward with contempt of Congress proceedings against Attorney General Merrick Garland for refusing to fully comply with subpoenas from February that demanded tapes of Hur’s two-day interview with Biden and of the special counsel’s interview with Biden’s ghostwriter, Mark Zwonitzer.
“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,” Assistant Attorney General Carlos Uriarte wrote in a letter.
House Oversight Chairman James Comer (R-KY) and Judiciary Chairman Jim Jordan (R-OH) received the letter ahead of their panels’ scheduled meetings on Thursday to initiate contempt of Congress proceedings against Garland over the audio. Neither one backed down on their plans to press ahead with contempt. The Judiciary Committee, which released a report that said the sought-after materials “are necessary to determine whether sufficient grounds exist to draft” articles of impeachment against Biden, began debate on contempt in the morning as planned.
Comer released a statement that said the “Hail Mary from the White House changes nothing for our committee” and declared that his panel would mark up a resolution and report recommending to the full House that Garland be held in contempt of Congress for defying a lawful subpoena.
“It’s a five-alarm fire at the White House. Clearly President Biden and his advisors fear releasing the audio recordings of his interview because it will again reaffirm to the American people that President Biden’s mental state is in decline,” Comer said. “The House Oversight Committee requires these recordings as part of our investigation of President Biden’s mishandling of classified documents. The White House is asserting executive privilege over the recordings, but it has already waived privilege by releasing the transcript of the interview.”
Rep. Jamie Raskin (D-MD), the top Democrat on the Oversight Committee, said in a statement reported by The Washington Post that Republicans are “trying to blame Attorney General Merrick Garland for their own protracted comedy of errors,” adding, “it’s delightfully absurd to suggest that listening to the President’s words instead of just reading them will suddenly reveal” an impeachable crime.
In his letter, Uriarte stressed the committees “ought not proceed with contempt and should instead avoid unnecessary and unwarranted conflict” as Biden had “asserted executive privilege over the requested audio recordings and is making a protective assertion of privilege over any remaining materials responsive to the subpoenas that have not already been produced.”
His letter also said, “We have repeatedly made clear that disclosure of the subpoenaed audio recordings would damage future law enforcement efforts and that the Committee’s continued demands raise serious separation of powers concerns.” Uriarte additionally noted “substantial efforts” to accommodate the demands from Comer and Jordan, including providing transcripts of the interviews and correspondence regarding Hur’s report.
The correspondence from Uriarte included a letter from Garland to Biden contending that the audio recordings from the interviews “fall within the scope of executive privilege.” He raised concerns about how disclosure of the materials could harm future investigations that Edward Siskel, counsel to the president, cited in a separate letter to House Republicans.
“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,” Siskel wrote. “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.”
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The report from special counsel Hur’s team was released in February after roughly a year of investigation. It criticized Biden’s retention of classified records while out of office, describing Biden as a “sympathetic, well-meaning, elderly man with a poor memory” whom a jury likely would not convict “of a serious felony that requires a mental state of willfulness.” Prosecutors ultimately declined to recommend charges against the president.
Hur also found that Zwonitzer deleted recordings of conversations he had with Biden upon learning about the documents inquiry. But the ghostwriter provided “plausible, innocent reasons” for his actions during the interview and Hur’s team said they ultimately determined the evidence would not suffice for a conviction on obstruction of justice, according to the special counsel report.
Biden and the White House have pushed back against Hur’s characterizations in his report, but Garland insisted that it would have been “absurd” for someone in his position to have edited or censored the special counsel’s explanation.
The fight over audio from Hur’s classified documents probe comes as Biden is running for a second term paving the way toward another November face-off against former President Donald Trump, who is trying to fend off charges in multiple criminal cases — including one related to his own handling of classified records.
Trump campaign spokesman Steven Cheung said in a statement on Thursday, “Crooked Joe Biden and his feeble administration have irretrievably politicized the key constitutional tenet of executive privilege, denying it to their political opponents while aggressively trying to use it to run political cover for Crooked Joe.”