House Judiciary sues Garland for Biden audio that Hur says shows him as ‘elderly man with a poor memory’

The House Judiciary Committee is suing Attorney General Merrick Garland to obtain recordings of President Biden’s interview with special counsel Robert Hur.

The committee, as part of the lawsuit filed Monday in the U.S. District Court for the District of Columbia, stressed the importance of the ‘verbal and nonverbal context’ of Biden’s answers that could be provided by the audio recordings – especially considering that Hur opted against charging Biden after the interview, in part, because he was viewed as ‘a sympathetic, well-meaning, elderly man with a poor memory.’ 

The lawsuit comes amid chaos in the Democratic Party as leaders consider whether Biden should continue with his re-election campaign after the president’s widely panned debate performance last week.

The committee, in its lawsuit, says the president’s invocation of executive privilege over the materials ‘lacks any merit,’ and it asks the court to overrule that assertion of privilege. 

‘This dispute is about a frivolous assertion of executive privilege,’ the lawsuit states. 

As part of the House impeachment inquiry against the president, the committee issued a subpoena to Garland to obtain records related to Hur’s investigation of Biden’s alleged mishandling of classified records. The committee sought materials related to Hur’s interviews with Biden and Mark Zwonitzer, the ghostwriter of Biden’s 2017 memoir. 

The Justice Department has provided the committee with transcripts of those interviews, but Garland ‘has refused to produce the audio recordings of the Special Counsel’s interviews with President Biden and Mr. Zwonitzer.’ 

‘Instead, Attorney General Garland asked that President Biden assert executive privilege over those recordings, and President Biden complied with that request,’ the lawsuit states. 

The committee argues that audio recordings ‘are better evidence than transcripts of what happened during the Special Counsel’s interviews with President Biden and Mr. Zwonitzer.’ 

‘For example, they contain verbal and nonverbal context that is missing from a cold transcript,’ the committee states. ‘That verbal and nonverbal context is quite important here because the Special Counsel relied on the way that President Biden presented himself during their interview – ‘as a sympathetic, well-meaning, elderly man with a poor memory’ – when ultimately recommending that President Biden should not be prosecuted for unlawfully retaining and disclosing classified information.’

The committee argued that the audio recordings – not merely the transcripts of them – are ‘the best available evidence of how President Biden presented himself during the interview.’ 

‘The Committee thus needs those recordings to assess the Special Counsel’s characterization of the President, which he and White House lawyers have forcefully disputed, and ultimate recommendation that President Biden should not be prosecuted,’ the suit states. 

The committee said Biden’s ‘self-serving attempt to shield the audio recording’ of his interview from the public ‘represents an astonishing effort to expand the scope of executive privilege from a constitutional privilege safeguarding certain substantive communications to an amorphous privilege that can be molded to protect things like voice, inflection, tone and pace of speech.’ 

The committee also noted that the transcript of the interview was made public, which essentially ‘waived’ executive privilege.’ 

‘Additionally, the heart of the privilege claim – that Executive Branch employees will be less likely to cooperate with DOJ investigations if they know that audio recordings of their interviews may be released to Congress after DOJ has made transcripts of those same interviews publicly available – is at odds with common sense,’ the lawsuit states. 

‘If the potential for disclosure would chill cooperation, it would be the disclosure of a transcript, which DOJ voluntarily disclosed here, not the disclosure of audio recordings after the transcripts are widely available,’ the lawsuit states. 

The committee argued that because of this, Biden’s invocation of executive privilege ‘lacks any merit.’ 

‘The Committee therefore asks this court to overrule the assertion of executive privilege and order that Attorney General Garland produce the audio recordings of the Special Counsel’s interviews with President Biden and Mr. Zwonitzer to the committee,’ the lawsuit states. 

The lawsuit comes just weeks after the House of Representatives voted to hold Garland in contempt of Congress, referring him for criminal charges over defying the congressional subpoenas for the audio recordings.

The Justice Department, though, said it would not prosecute Garland. 

‘Consistent with this longstanding position and uniform practice, the Department has determined that the responses by Attorney General Garland to the subpoenas issued by the committees did not constitute a crime, and accordingly the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General,’ Assistant Attorney General Carlos Felipe Uriarte told House Speaker Mike Johnson in a letter last month. 

Hur, who released his report to the public in February after months of investigation, did not recommend criminal charges against Biden for mishandling and retaining classified documents, and he stated that he would not bring charges against Biden even if he were not in the Oval Office. 

Those records included classified documents about military and foreign policy in Afghanistan and other countries, among other records related to national security and foreign policy, which Hur said implicated ‘sensitive intelligence sources and methods.’