WASHINGTON — President Joe Biden has asserted executive privilege over audio recordings of his interview with special counsel Robert Hur, the Republican federal prosecutor who declined to recommend charges against him over his handling of classified documents.
Hur wrote in his report that one reason not to bring a case against Biden is that he would be sympathetic to a jury and could portray himself as an “elderly man with a poor memory.” Biden defended his abilities, and Attorney General Merrick Garland later said it would be “absurd” for him to have tried to block Hur’s language about Biden’s memory.
White House counsel Ed Siskel notified Reps. James Comer, R-Ky., and Jim Jordan, R-Ohio, of the decision in a letter Thursday after Garland recommended that Biden assert executive privilege. The Justice Department had already given House Republicans transcripts of the interviews.
“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,” Justice Department official Carlos Felipe Uriarte wrote in a letter to Jordan, of Ohio, the chair of the House Judiciary Committee, and Comer, of Kentucky, chair of the House Oversight and Accountability Committee.
Garland wrote in a separate letter to Biden that the audio recordings “fall within the scope of executive privilege” and that giving the recordings to Congress “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.”
In comments to the media Thursday morning, Garland said the Justice Department had “gone to extraordinary lengths to ensure that the committees get responses to their legitimate requests, but this is not one.”
Releasing audio of an interview, he said, “would harm our ability in the future to successfully pursue sensitive investigations,” saying it was part of a “series of unprecedented and, frankly, unfounded attacks” on the Justice Department, including efforts to hold Garland in contempt to obtain the audio.
“This request, this effort, to use contempt as a method of obtaining our sensitive law enforcement files is just the most recent,” he said. “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. Look, the only thing I can do is continue to do the right thing. I will protect this building and its people.”
House Republicans have been using their bully pulpit to undermine the criminal prosecutions of Donald Trump, the presumptive Republican presidential nominee, and to attack Biden ahead of their 2024 election rematch. Hours after Biden asserted executive privilege, the House Judiciary Committee voted 18-15 to send a report to the full House recommending that Garland be held in contempt of Congress. The House Oversight Committee advanced its own contempt resolution Thursday evening after several of its GOP members were in New York earlier in the day to attend Trump’s hush money trial.
House Speaker Mike Johnson, R-La., did not commit to a timeline for putting the contempt resolution on the floor for a full House vote, saying at a news conference Thursday morning, “We’ll see how that develops, one issue at a time.”
While a transcript of Biden’s interview has already been released, the House Jan. 6 committee illustrated that audio and visuals can pack a much harder political punch with the American public than dense, written reports that very few voters will actually read.
News outlets, including NBC News, have joined in the push for the release of the audio under the Freedom of Information Act, arguing that transcripts are no substitute for audio recordings.
John Fishwick, who was a U.S. attorney in the Obama administration, told NBC News that the Justice Department “should not stand on a flimsy executive privilege argument to stall the release of President Biden’s audio interviews with special counsel Hur” and that Biden and the Justice Department “should promote full transparency of the Hur investigation and release the audio recordings now.”
Trump, who faces four criminal cases in which he has pleaded not guilty, did not sit down with then-special counsel Robert Mueller‘s team during the investigation into Russian interference in the 2016 election, a decision that paid off for him. Trump said he was “f—ed” when he learned about Mueller’s appointment, and he said it would be the “worst thing that ever happened” to him. Publicly, Trump claimed he wanted to talk to Mueller, even saying he’d “override” his lawyers, but he ultimately never sat down with investigators.
Trump’s 2016 opponent, Hillary Clinton, did sit down with the FBI during the investigation into her handling of classified documents. Clinton has called the bureau’s decision to reopen the investigation just days before the 2016 election “the determining factor” in her loss to Trump.
In 1998, President Bill Clinton testified before a federal grand jury as part of the investigation into whether he lied under oath about his affair with Monica Lewinsky. That video was made public by the House Judiciary Committee about a month later.
Then, as now, the White House argued that the video was being released only to embarrass the president. In that case, independent counsel Kenneth Starr willingly turned over the Clinton video to Congress. The independent counsel statute expired in 1999, and special counsels now operate under different regulations.
In comments to the media the week he called Trump’s hush money trial “an atrocity,” Johnson, the House speaker, said Biden was “using his authority to defend himself politically.” (Trump has used the authority of his former office to fend off trial on federal election interference charges by arguing all the way up to the Supreme Court that he’s covered by presidential immunity, successfully delaying a trial that was supposed to be underway back in March and would most likely have resulted in a verdict by now.)
“President Biden is apparently afraid for the citizens of this country and everyone to hear those tapes,” Johnson said. “They obviously confirm what the special counsel has found 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.”
Johnson struck a much different note after the Mueller probe ended five years ago in 2019, telling NPR that “it’s time to move on” and that “trying to redo” the special counsel investigation “would be a waste of our time” and pointing to the importance of Justice Department regulations about releasing sensitive information.
“There are current DOJ regulations that prohibit [then-Attorney General William Barr] from revealing classified information for obvious reasons, secret grand jury information, other sensitive information,” Johnson said then.
The House Oversight Committee was supposed to hold a hearing Thursday morning to consider recommending contempt charges against Garland, but the Trump trial took precedence.
Several members of the panel made plans to show their allegiance to Trump by appearing at the courthouse Thursday, forcing Comer to pull the plug on the 11 a.m. hearing and move it to 8 p.m. The House members have no official role in the trial.
This article was originally published on NBCNews.com
