Below is my column in The Hill on the curious claim of executive privilege over the audiotape from President Joe Biden’s interview with Special Counsel Robert Hur. It is the first time that I know of where the content of a presidential conversation was treated as unprivileged but the audio of the conversation claimed as privileged. It is also an invocation on answering questions about alleged criminal acts committed while a private citizen. It is, in my view, entirely without merit but Attorney General Merrick Garland appears more interested in running out the clock than prevailing on the claim.
Here is the column:
While all eyes were focused on a Manhattan courthouse for Donald Trump’s trial, a curious thing happened in Washington. President Joe Biden invoked executive privilege in defiance of Congress.
It is not the invocation that is particularly unusual. What is curious is that Biden is withholding the audiotape of his own interrogation by Special Counsel Robert Hur, even though the transcript has been released as unprivileged.
It appears that Joe Biden is “he who must not be heard.”
The invocation of privilege over the audiotape is so transparently political and cynical that it would make Richard Nixon blush. Multiple committees are investigating Biden for possible impeachment and conducting oversight on the handling of the investigation into his retention and mishandling of classified material over decades. Classified documents were found in various locations where Biden lived or worked, including his garage. The mishandling of classified material is uncontestable. Broken boxes, unprotected areas and lack of tracking are all obvious from the photos.
The comparison to the Trump case in Florida is both obvious and disturbing. Where Trump was charged with a litany of charges, including mishandling and retention of documents (in addition to obstruction), Hur decided not to charge Biden at all. His reason was outright alarming: The president is an elderly man with failing memory.
Biden made the situation even worse with a disastrous press conference in which he attacked Hur and misrepresented his findings. Biden told the public that the special counsel did not find willful retention of material. This was untrue — Hur not only found that Biden had done this, but repeatedly detailed such violations in the report.
Biden also claimed that he had not shown classified material to third parties, even though Hur specifically found that he had and established that there is a witness to that violation.
Biden also attacked Hur for bringing up the death of Beau, his son who passed away in 2018. In showing why Biden could use his diminished faculties as a defense, Hur had noted that Biden got the date wrong of his own son’s death.
In the press conference, Biden angrily asked “How in the hell dare he raise that?” Frankly, when I was asked the question, I thought to myself it wasn’t any of their damn business.”
It was later shown that it was not Hur but Biden himself who raised his son’s death, which he often does in speeches.
Hur’s view that Biden’s diminished cognitive abilities would undermine any prosecution left many dumbfounded. After all, the man who is too feeble to prosecute is not only running a superpower with a massive nuclear arsenal but running for reelection to add four more years in office.
From impeachment to oversight to the 25th Amendment (allowing the removal of a president for incapacities), there are ample reasons for Congress to demand information and evidence from the government on these questions. Congress is also interested in looking at repeated omissions for “inaudible” statements. Under this sweeping theory that Biden can legitimately withhold these recordings under executive privilege, any president could withhold any evidence of incapacity or criminality.
The House is poised to find Attorney General Merrick Garland in contempt for refusing to release the audiotapes. It is a cynical calculation. Garland knows that his own department will never prosecute him for contempt of Congress. Obama Attorney General Eric Holder was clearly in contempt of Congress and abused executive privilege arguments to shield embarrassing details tied to Operation Fast and Furious. His department refused to even submit the matter to a grand jury.
Garland also knows that it will take months to get any ruling on the matter once Congress can file with a court. That will push any decision and release until after the election. While the administration and liberal legal analysts insisted that courts should expedite any and all trials of Donald Trump before the election, they are not eager for the public to know this information about whether Biden seemed feeble or confused under questioning.
A court may be a tad confused as to why a president’s answers are not privileged, but the actual audio recording of those answers can be privileged.
White House counsel Edward Siskel added to the dubious basis for the claim in a letter to House Judiciary Chairman Jim Jordan (R-Ohio.) and House Oversight Committee Chairman James Comer (R-Ky.) on Thursday. He suggested that, if there were a compelling reason for the audiotapes, it might be different.
“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,” wrote Siskel. But that is not a basis for an executive privilege assertion. How material would be treated is not relevant to whether Congress has a right to the information.
Past presidents have routinely over-extended privilege claims for political purposes. Nixon had his own tapes in the Watergate scandal. Of course, he was denying access to all of the information on the tapes. Yet, in a strange way, that may have been more compelling, since Nixon was arguing that the disclosure would compromise the content of privileged conversations.
Biden is not claiming the actual conversations as privileged; only how he sounded and spoke the words that are already in available transcripts.
For the Justice Department itself, these pendulum swings between being a contempt hawk and dove are enough to give a judge vertigo. The department just prosecuted Trump officials for refusing to appear or supply evidence to Congress. Likewise, arguments of privilege by former Chief of Staff Mark Meadows have been rejected. Yet privilege is now being asserted for this conversation between Hur and Biden, concerning potentially criminal conduct committed when Biden was a private citizen — neither vice president nor president.
In other cases, federal and state prosecutors have argued that Trump’s statements on Jan. 6 were criminal, made in relation to private interests and not protected under executive privilege or immunity. Notably, unlike in Biden’s case, these were statements made while Trump was president and concerned matters raised during Trump’s term. Likewise, prosecutors rejected claims that Trump has any protection over his call with Georgia officials over the demand for a recount. Imagine if Trump had argued that it was privileged to hear his voice, but not to read his words in the call.
Biden’s Voldemortian theory of privilege is unlikely to succeed legally, but that is not the point. Garland knows that it is likely to succeed politically. With generally favorable judges in Washington, the Biden administration hopes to run out the clock on the election. If Biden wins the election or the Democrats win the House, there may be no ongoing investigation or justification to support the demand in court. Of course, unlike Voldemort, who simply did not want to be named, Biden wants to remain “he who must not be heard” outside of short, carefully controlled settings.
What Hur heard could therefore remain a privilege of office.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.
Dictator for life? The allied figures from Zelensky to Netanyahu have remarkable likeness in evading accountability for their seemingly unethical actions, defying the practical exercise of democratic accountability.
Transparency does not seem to be a trait of this WH admin.
@Upstate
I don’t think your average dem voter even knows what that means. All they care about is things went the way I wanted them to, to preserve my status quo, thinking beyond that is just too hard, and if my own personal comfort is on the line – automatic rejection. I am the only one that matters in this universe, and I will support anyone that supports that fantasy. Hence the term, ‘Great White Liberal Savior’. None of these fools actually see the world.
“. . . if there were a compelling reason for the audiotapes . . .”
One obvious reason (which any attorney knows): To see if the transcript squares with the recording.
The failure to release the tape immediately implies that there is a discrepancy between the tape and the transcript. There may be no difference but to not release the tape almost immediately makes you think it was sanitized. The changes can be subtle or severe, since inflection, anger, slurring or long pauses can show confusion or uncertainty in the subjects voice. I’m sure most Democrats will say this is beating a dead horse (as noted above) but to those of us with some suspicion of this White House and this president’s tendency to obfuscate, exaggerate and also lie, the unedited tape should be released.
An example would be the transcript of a medical procedure such as a surgery.
“The bleeding was controlled and the surgical area was irrigated and the injury identified” can be a an adequate substitute for “Oh s__t, where did that artery come from. Quick get some suction on that area. I need clamps and more clamps . Drop the patient’s head, open the saline and lactated ringers because the pressure is dropping. Get Dr. Brown in here, because I need some more hands, NOW!. Get a clamp over here because it looks like the bleeder has been found and is between my fingers. Got it! Pressure is coming up now. Damn! Ok let’s see now if we can get this lesion totally isolated and ready to be removed.”
You never know what really sits behind those dry phrases. I’m sure politics and most other professions have their moments also. I also cleaned up the language a little.
One of my many hats was sitting on medical review panels to review the record and determine if there was possible malpractice. A lot can be found behind those written records
Geb said: “The failure to release the tape immediately implies that there is a discrepancy between the tape and the transcript. There may be no difference but to not release the tape almost immediately makes you think it was sanitized.”
Unfortunately, it is not at all difficult to edit and/or enhance video, sometimes in quite subtle ways, to alter the meaning. There is an entire, long-term, lucrative, industry that is largely based on that premise (“Hollywood”). I’m assuming that there is no checksum or equivalent hard validation on evidentiary videotapes such as the one in question, and that the only proof of authenticity and completeness is provided by chain of custody. Would you really trust these people to properly observe CoC prcedures?
Garland has done much for the reputation of the DOJ (not in a positive way.) He acted like an offended child when he made a comment to the press. I was so moved, I shed a crocodile tear on his behalf.
The corruption and abuse of our legal system is on full display for those willing to see.
Sorry, Turls…, in regard to abuse of presidential privilege I don’t look at Biden’s actions in the Hur investigation as being equal to trump’s at MAL…
In fact, I’m much more interested that two open insurectionists sit on SCOTUS and will be allowed to make a judgement on presidential immunity going forward.
How much does the Biden regime pay you to post stupid.
Of course they’re not equal, unlike Biden, Trump has an iron clad defense to possessing classified documents. Presidents have always had unlimited power to classify/declassify documents, civilians, senators and secs. of state do not. When he took those documents to MAL, they were de-classified. If the case ever makes it to the SC, they will find that he isn’t required to do anything more than that. The SC would really be unable to rule in any other way without destroying our entire system of classification and going against numerous examples of classified information being released by past presidents wherever and whenever they chose to do so. Notwithstanding Turley’s opinion, this should be the easiest case of all for Trump to win.
Trump wasn’t president when he was having boxes moved around to hide them from the FBI. Jail for Donny.
Jail? This case is dead in the water. Cannon isn’t even moving it out of pre-trial.
Do you need to go to Dean Wormer’s office and hear that fat, drunk and stupid is no way to go through life? A corrupt judge is trump’s only prayer. If trump were elected again it would be a literal foot race between the agencies to take him out. No way an ass clown who couldn’t get security clearance should ever sit in the oval again.
And yes, I know just by virtue of getting elected that security clearance comes with the job. Gigantic weakness in the American system
Another cowardly Anonymous Soviet Democrat is filling in until Dennis McIntyre, Bribery Biden’s version of Baghdad Bob, shows up for work…
Yeah, the documents Trump had at MAL – under 24/7 Secret Service guard – is supposedly worse than the 30+ years of STOLEN classified documents Biden took before being a president with a right to documents… carefully stored by Biden in offices Biden White House Crime LLC shared with ChiCom family business customers and in a garage used by The Family Paymaster Formerly Known As The Crackhead Kid.
And then concluding that two SCOTUS justices were involved in the 540+ insurrectionist riots in The Year Of Mostly Peaceful Insurrection And CHAZ/CHOP Rebellion. Were they supposedly involved in the assault on the White House as well – the one that led to the Secret Service evacuating the president and his family?
“ The department just prosecuted Trump officials for refusing to appear or supply evidence to Congress. Likewise, arguments of privilege by former Chief of Staff Mark Meadows have been rejected. Yet privilege is now being asserted for this conversation between Hur and Biden, concerning potentially criminal conduct committed when Biden was a private citizen — neither vice president nor president.”
Mark Meadows is NOT the president. His claims of executive privilege have been thoroughly proven to be invalid by the courts multiple times including multiple refusals to review by the Supreme Court. Privilege is being asserted by the President which is quite different from staff and administration officials invoking it. We all know presidents are treated differently because they are presidents. Trump has shown that distinction quite clearly. Trump is currently claiming absolute immunity for actions he committed as a private citizen because he is a former president. If that is possible then Biden’s claims are stronger since he is still president.
George pops up to pimp for Soviet Democrat Two Standards Of Justice, especially where it concerns privilege to protect Bribery Biden. Oh… and just like his favorite police state fascist Jack Smith has claimed – Trump was supposedly a private citizen while he was still president.
George is pimping for Jack Smith to do a repeat on what he did to Obama/Biden’s most feared potential reelection opponent, Governor Bob McDonnell. Obama/Biden didn’t care back then that Smith’s prosecution and conviction of McDonnell was thrown out in a rare unanimous SCOTUS decision and they referred to Smith as “a threat to the separation of powers”. What mattered is that Smith took out McDonnell so they could win reelection.
George wants Smith to do the same here to get Biden/Harris reelected – and just like the 2012 election, he really doesn’t care if Smith and any convictions get thrown out at SCOTUS for a second time. This is about political lawfare and political interference to win an election.
George is a police state fascist who missed his calling – he would have felt far more at home back in the USSR working for Stalin’s prosecutor Lavarentiy Beria, rather than living here in America where he faces a danger of the return of the American standard of justice and law.
If that is possible then Biden’s claims are stronger since he is still president.
Do you even realize, information is classified. It is not the paper, or audio file. It is the content, not the medium.
The information has already been made public. Claims of Privilege no longer apply.
With 100% of Bidens oral disasters cleaned up in the transcripts, Congress has the need to see how much Hurr lied in the transcripts.
@Iowan2,
“ Claims of Privilege no longer apply.”
That would be for the courts to decide. Trump employed similar arguments when he was requested to provide certain information. Executive privilege may not have applied, but Trump still claimed it and forced congress or the DOJ to go through the courts in a long drawn out legal dispute that was intended as a delay.
If Trump could do that, so can Biden. Turley often made a lot of excuses defending Trump’s tactics that forced congress or the DOJ to go to court and let the courts decide if it is indeed executive privilege. I believe John Say’s turnabout is fair play argument clearly applies to this situation.
George, The information is already public, Executive Privilege cannot apply to public information.
Its the information. NOT the meduim used to record the information.
The issue being the Controlling body, is exercising their power of oversight. They have information, NOW the congtrolling body is demanding source documents.
You can right off your taxes approved expenses to reduce taxable income. But if audited, the IRS has the power to demand the source documents to prove the
@Iowan2, you could be right, but that still doesn’t stop Biden from claiming executive privilege. He can invoke it and congress can go to court to resolve the dispute. Trump did this all the time when he was POTUS. I don’t see why Biden cannot do the same if it was ok with republicans when Trump did it.
“ 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,” wrote Siskel.”
It’s a valid reason. Jim Jordan and James Comer have been caught cherry-picking and releasing statements out of context to put out a false narrative to attack the president with. They already have the transcripts and Hur’s report. Republicans are just wanting to beat dead horse to distract from Trump’s troubles and possible conviction in the coming weeks.
You mean like Adam Schiff did on almost daily basis?
What has Adam Schiff cherry-picked or published out of context? Can you give any examples?
George alternates between police state fascist Soviet Democrat lies and cherrypicking. And then claims anyone responding to his claims about Jordan and Comer cherrypicking by reminding him of the four year long Schiff Shyteshow of pathological serial lying is referring to something that never happened.
Even Biden’s White House Spokes Liar, Cringe Jean-Pierre isn’t this blatant and ridiculous.
What has Adam Schiff cherry-picked or published out of context?
Better use of time to cite what Schitty Schift has not cherry-picked or published out of context
Can you give any examples?
Sealioning is never a good look
So you cannot cite any examples. I am not surprised
Isn’t this what Trump and his staff always claimed? Executive privilege was used as a delay tactic and just dragged in through the court’s through appeals and delays and motions. This is essentially no different than Trump’s tactics to obfuscate and delay. If it worked for Trump in retrospect it should work for Biden.
Hur made a lot of unecessary assumptions and implied notions about Biden’s health and invoking his son’s death as excuses because he really couldn’t charge Biden with the evidence he had. Biden cooperated fully and transparently. Hur acknowledged as much in his report. On the other hand Trump engaged in willful obstruction and deceit leading to the issuance of a search warrant.
Both cases have clear differences. Trump spent well over a year obstructing NARA’s legitimate attempts to have documents that did not belong to Trump returned. He was refusing to return classified documents that he claimed were classified without being able to show that they were. Biden willingly and quickly returned any documents found and he also let the FBI search for and gather any documents from his home and former offices. Those actions according to Hur played a significant role in deciding not to press charges. The health and age issue was just a cheap shot for future political fodder.
Biden’s handling of documents clearly was an issue, but it did not rise to the point that it necessitated a search warrant and multiple court orders like Trump’s. Trump is likely to be indicted on criminal charges within two weeks at least. He still has a couple of criminal trials to go through. Biden has none. The impeachment inquiry is all but dead in the water.
Invoking executive privilege may not be warranted, but like I said, if it worked for Trump it should work for Biden. There are things that can be learned about Trump’s delay tactics. They work.
You wrote: “Biden’s handling of documents clearly was an issue, but it did not rise to the point that it necessitated a search warrant and multiple court orders like Trump’s. Trump is likely to be indicted on criminal charges within two weeks at least. He still has a couple of criminal trials to go through. Biden has none. The impeachment inquiry is all but dead in the water.”
I believe Trump was already indicted in the documents case. Is there another case we don’t know about?
@EconIsEasy,
My apologies, you’re right, I meant to say possibly convicted within two weeks. That’s regarding the Hush money case currently on trial.
I thought he was charged with the SOL’d misdemeanor of falsifying business records that was revived by, and piggy-backed onto, a mystery felony. When did it become a “hush money” case?
He’s still charged with falsifying business records. The statute of limitations was not applied since NY law on SOL required Trump to reside in the state continuously for the two years of the SOL. Trump did not remain continuously in the state for two years. If the SOL was an important issue Trump’s defense lawyers would have brought it up a long time ago. It seems the SOL is not relevant because Trump did not continuously reside in NY for two years when the alleged crime was committed.
“If the SOL was an important issue Trump’s defense lawyers would have brought it up a long time ago.”
How many times, you serial deceiver, do you have to be told that they did bring it up? More than once. Your policy “judge” flouted NY law.
@Sam,
Through further research noted in my post to anonymous above it seems an extra year was added to the SOL for cases due to the pandemic. Don’t ask me why. All I know is that is what NY did for all cases at that time. So it wasn’t just for Trump but for everyone who faced SOL issues in NY. Then there’s the additional fact that Trump was not continuously living in NY at the time. Which is an SOL requirement.
Yeah, but Trump.
Surprised the tape hasn’t been leaked or some hack judge forced the release, remember a few years ago when those were all the rage? Those were the days.
Hamlin’s Children will dance to their Piper’s tune notwithstanding. Matters not that they can’t hear the music.
Why ever would they want no one to hear the tape?
@UpstateFarmer: Re: “Why ever would they want no one to hear the tape?’ To borrow from those old radio contest rules: To prevent the electorate from independent confirmation that that this man lacks ‘originality, clarity, or aptness of thought’, among other failings.
The transcript is already available. Why do they need the tapes? Hur already published his report.
That the transcripts are available to the public PROVES, without doubt, there is no legal basis to withhold the tapes.
They can only be withholding the tapes for one reason: to avoid conceal how horribly Biden performed during the interview as a way to improperly influence the election.
Biden’s cognitive impairment and verbal incoherence is apparently so severe during the interview that whoever makes Biden’s decisions for him has decided they’d prefer to take whatever criticism they receive for unlawfully withholding the audiotapes than allow the public to see how decrepit and incoherent their President is.
That is a fact. Now spin all you want.
@anonymous,
“ They can only be withholding the tapes for one reason: to avoid conceal how horribly Biden performed during the interview as a way to improperly influence the election.”
If that is the case, then they only want the recordings for political purposes, not for legitimate congressional investigation. We already know Jordan and Comer like to “leak” snippets and statements from hearings and interviews out of context and mischaracterized for political purposes. Hur already concluded his investigation. He issued his report and included the transcript of the interview. Biden can claim executive privilege if he wants to and he can let the courts decide if he can do that or not. He may be employing the same tactic Trump has used plenty of times. We can complain and whine and assume a lot of things about the recordings. But ultimately the legal way, through the courts may be the only way congress can get those recordings. Just like Trump forced congress to do when he was president. It’s a legitimate tactic to frustrate congressional committees. If it worked for Trump it will work for Biden.
The creative reasons cited by Hur for not seeking an indictment were in part that Biden was frequently confused during his deposition and that he may not be fit to stand trial. Biden refuted that position, largely arguing that he was fully in charge of his faculties…and presumably perfectly fit to stand trial. The written deposition tells us very little about his mental acumen, that is why the tapes are necessary. It’s not just what he said, but how he said it. You know. the whole reason Hur chose not to indict???
@anonymous,
Hur had to be creative, but not for the reasons you cite. Hur chose not to prosecute Biden because he did not have a case that would succeed in court. So he made excuses using Biden’s age and mental capability to “show” mercy to an old man. Everyone besides Trump supporters saw through the BS Hur used to justify not charging Biden. Hur did not have enough evidence to prosecute. Just like the impeachment inquiry did not have evidence of an impeachable offense or offenses.
You just destroyed your own argument. Transcripts are available so how the he11 can he claim privilege for the same contest via a different medium
What is even more troubling is Merrick Garland’s assertion that the DOJ is above Congressional Oversight because it is “essential to Democracy”. He is the sole arbiter of Oversight………..
MRR said: “assertion that the DOJ is above Congressional Oversight because it is “essential to Democracy”.”
That is a freaking hoot. You could axe 95% of investigations that DOJ makes and cases it purseus, and all of us who still believe in Liberty, and in a Constitutional Republic that limits government to strictly enumerated powers, would be far better off. Of, course, that may be exactly what Garland meant…
Those ‘tapes’ exist and are being held somewhere. Considering the propensity for leaks in our Federal Government, for the right ‘price,’ those tapes could or would become publicly available —- why haven’t they as of yet?
There is nothing that the Democrat mafia will not do. If a court would somehow order the release of the tapes on an expedited basis, we can fully expect to learn that they have been erased with BleachBit and hammered into small bits. It was the Obama-Biden administration that turned the Democrat Party from being merely racist and socialist/communist into being a gang of thugs.
Considering that Bidens operatives have controlled all messages and actions of the Executive Branch, it’s strange that the entire affair got out. Could it be the beginning of Dump Biden?
I was for Hamas before I was against Hamas.
Just another distraction from Bidens legal woes.
We need a second Department of Justice to prosecute the current Department of Justice for its abuse of our legal system.
So much for transparency. SMDH