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.
Does he really have executive privilege here?
If the transcript was released, it further weaken’s his argument.
It would be an interesting SCOTUS case…
At the same time the NYTimes vs The United States (aka Ellsberg) would be grounds to have the tapes released where the probative value is greater than POTUS’s ‘privilege’.
-G
There is an argument that the fruits of Hur’s investigation are privileged – though NOT executive priviledge.
As a rule the records of a criminal investigation that do not result in charges are priviledged.
That is to protect the right to privacy of the target AND anyone else that was interviewed.
But that privilege does not apply to the official conduct of those in government.
separately we have a long past history of providing much of what a Special counsel investigates.
Finally – really only executive privilege prevents Congress from access.
If Congress goes to court – this subpeona will be enforced. BUT it is possible that the court will attach strings.
Such as prohibiting its public release.
And that would pose further complications – because any congressmen could make it public and be immune to judicial contempt charges.
When it is determined that Crooked Joe is mentally unfit, that will also mean that any executive order that he signed will also be voided.
Poor anon.
Nope.
Biden is technically fit until he is ruled to be unfit. Therefore anything he does stands.
That said… consider Trump as POTUS. He can release the tapes. He can remove Biden’s security clearance.
Trump was like a babe in the woods when it came to the dirty tricks … but now after what he’s been thru… he’s been educated and can right some of the wrongs. Revenge? Not when the act against him was illegal. But don’t let that stop people from howling.
-G
G, That would also make him responsible for him taking bribes from our enemies and other crimes. That would mean he would have to resign, making Kamala president, just for the pardon.
Unless he thinks that Trump would pardon him.
When Trump wins the election they will be recinded.
I do not beleive there is some provision int he constitution that undoes the actions of an incompetent poresident.
The videos of Biden’s motorcade passing through Atlanta was hysterical.
Upstate – I believe people generally know he’s an empty, dementia-riddled shell. Many will vote for him nonetheless, because they know they’re really voting for Obama as puppet master.
Does it matter ?
There are two choices – Biden is competent and a complete F#$Kup, or he is incompetent and should not be president.
I strongly beleive Biden is duffering from demintia – and probably Vascular or something similar – rather than Alzheimers.
He is declining much as my father did, albeit slightly slower.
His problems, behavior and decline are very similar.
His combativeness is similiar – when you are on verbal offense – you do not need to hear or understand what others say.
His periods of aparent competence followed by inability to get out 3 words, is very similar to what my father went through.
I would not wish that on anyone. It is h3ll on the person and on their family.
But lets assume I am wrong – Then Biden is fully responsible for the mess he has made.
Trump suffered a Mitch McConnell type of Glitch during his NRA speech. He’s also had trouble remembering things and talking complete nonsense. It would be safe to say Trump is also incompetent and/or unfit to serve.
But… On day one of his presidency, his spokesperson Jen Psaki said
Biden plans to “bring transparency and truth back to the government
to share the truth, even when it’s hard to hear.”
Glenn Greenwald in a recent podcast noted what an accomplished liar Psaki is.
If an audio tape falls in a forest but there’s no one around to hear it will it make a sound? A written transcript can not convey a condition of confusion nearly as well as a voice recording. So hide it they must lest the truth be revealed. Turning down the gaslight to convince you that your going blind.
Next could be a made up excuse to arrest Donald Trump.
This is the Bolivian administration, isn’t it?
@Speakup…
Uhm… what do think is happening in NYC right now?
34 or some number of counts against Trump when its really 1-2 counts which are still a joke?
Bragg should be disbarred, sued by Trump and charged w election interference. Same for the judge although he would be harder to convict.
About as brief an explanation as one can get regarding Biden’s claim of “executive privilege” (swiped from the comments of the Epoch Times):
“There is NO basis for Biden claiming Executive Privilege regarding the Hur tapes.
1. The tapes involve activities that took place BEFORE Joe Biden was POTUS.
2. Joe Biden did not invoke Executive Privilege to avoid the interview with Hur.
3. There is no constitutional basis to declare the tapes are privileged when Biden did not claim that for the report or the testimony of Hur before Congress.
This is a severe abuse of power by Biden”
@Anon…
Errr yes and no.
While the acts took place before Biden was POTUS, the interview occurred while he is POTUS so he can claim it.
That said…
Its an easy argument to show that he shouldn’t have any because the transcript was released without any claim to privilege along w the fact that its a federal investigation into an allegation of a criminal act that he may have committed before becoming POTUS.
So yes I agree no privilege, but one of the arguments against privilege is wrong.
Didn’t Hur conclude his investigation? The point of issuing his report to Congress is part of the conclusion of the investigation. Hur did not have enough evidence to indict Biden.
The only reason they want the recordings is so they can leak them for political purposes. Jim Jordan and James Comer are well known for doing these kinds of political hit jobs. If the investigation is concluded how can they claim there is a legitimate congressional need since they have the transcript?
The only reason they want the recordings is so they can leak them for political purposes.
You say that as if it were a bad thing
@Nancy Pelosi,
It is. Because it does not serve a legitimate legislative purpose.
The legitimate purpose is oversight.
The FBI, the DoJ, the White House, have all been caught editing transcripts. Congress, any invesigative body, has the power to seek and receive source documents.
You mean when republicans get caught editing and leaking transcripts.
George,
you need a link to that.
But the facts remain Congress has the right to the source of the transcript. It is not debatable.
@George
My God George, did you even read Hur’s report or listen to his testimony? Hur did not say he “did not have enough evidence to indict Biden”. He said, given Biden’s mental status and a sympathetic jury, Biden would not likely be convicted.
@Show me,
Yes, I’ve read the report. Obviously you didn’t.
From the report on page 342,
“ THE EVIDENCE IS INSUFFICIENT TO OBTAIN A CONVICTION FOR OBSTRUCTION OF JUSTICE”
On page 10,
“ We conclude the evidence is not sufficient to convict, and we decline to recommend prosecution of Mr. Biden for his retention of the classified Afghanistan documents. “
https://www.documentcloud.org/documents/24414255-report-from-special-counsel-robert-k-hur-february-2024
@George
Your quote: “Hur did not have enough evidence to indict Biden.”
Your subsequent quotes all speak of “convict and “conviction”.
Do you realize an indictment and a conviction are not the same thing?
So, both of us read it. Did both of us understand what we read???
@Show me,
You can’t indict if you don’t have enough evidence to convict.
Hur saying there’s not enough evidence to convict means there’s also not enough evidence to indict.
@George
No, Hur did not say “there’s not enough evidence to convict means there’s also not enough evidence to indict.” That is you. Good cherry picking job out of the report to support your view. The more complete text is as follows from page 6 of Hur’s report:
“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory. Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him-by then a former president well into his eighties-of a serious felony that requires a mental state of willfulness. We conclude the evidence is not sufficient to convict, and we decline to recommend prosecution of Mr. Biden for his retention of the classified Afghanistan documents.”
There is no mention by Hur about the inability to get an indictment, there is only mention of ‘conviction’. Grand juries indict, they do not convict. Trial juries convict, they do not indict. The circumstances of presenting a case to a jury for consideration of conviction can only proceed after an indictment from a grand jury or preliminary hearing. In fact, the threshold for evidence at the grand jury level is even lower than the trial level. But Hur still indicates the trial level by referencing ‘conviction’ by a jury.
Further, as you will note from Hur’s passage above, Hur’s refusal to proceed does not center on the evidence at hand. Rather, it focuses on Biden’s then current and now ongoing mental status being compromised to the extent that “willfulness” (as in “a serious felony that requires a mental state of willfulness) on a felony charge might not be accepted by jurors and to convince them otherwise “would be difficult”. And that is nearly the entire basis for the current controversy surrounding this issue: Democrats are upset that Hur challenged Biden’s mental status to the extent of using it as a basis not to proceed while Republicans are upset that Hur let Biden off because of his mental status.
It would seem then, that all but Hur, including Biden, do not agree with Hur’s conclusion about the mental status issue. The release of the tape should settle that by allowing all to hear what Hur heard and determine who the real compromised person is in the room.
@anonymous,
“No, Hur did not say “there’s not enough evidence to convict means there’s also not enough evidence to indict.”
I did not claim he said that. I said that if there’s not enough evidence to convict there’s not enough evidence to indict. I didn’t say Hur said that. You’re not paying attention.
“Further, as you will note from Hur’s passage above, Hur’s refusal to proceed does not center on the evidence at hand. ”
No, Hur could not proceed because he did not have sufficient evidence to convict. The evidence he had was not enough.
Biden’s mental status is not compromised. Alleging it is is an excuse for the lack of evidence. Hur did not find credible evidence to get a guaranteed conviction.
I did not claim that you said Hur made the statement specifically. Rather, you made the statement as a summary of what Hur said with your added implication. As in “Hur saying there’s not enough evidence to convict means there’s also not enough evidence to indict.” @ 2:17PM. I pointed out that was YOU saying that. Pay attention.
No, Hur stated the “serious felony that requires a mental state of willfulness.” Given Biden’s mental status he did not think he could convince a jury about the “willfulness”, so he felt he could not proceed. Full stop. You go beyond what is stated.
It appears that all you are doing is disputing what Hur said by making the claim that “Biden’s mental status is not compromised.” So what? Hur interviewed him, you did not. So the basis for your claim is what? Your alleging Hur’s use of Biden’s mental status is an excuse is based on what? Either way, that does not by any means demonstrate there is a lack of evidence. It means nothing more the defendant’s mental status compromises the ability to prove “willingness” on the part of the defendant.
@Anonymous
Look closely, the first two items listed are NOT arguments, they are facts. If one were to take the view of arguments, only point number 3 would be the arguable point.
A president can claim ‘executive privilege’ on any item at any time as a sitting president. However, invoking the claim must be supported by at least some semblance of interfering with “necessary and proper concept respecting the carrying out of the duties of the presidency imposed by the Constitution”. Clearly, Biden granted the interview and transcript release thus demonstrating that he did not believe that doing so interfered with his Constitutional duties.
The ‘crimes’ were committed by Biden and his co-conspirators before he became POTUS.
Further, in today’s environment (as evidenced by the shocking proceeding currently underway in NYC), one could even make the case that Biden and his co-conspirators actually influenced the 2020 election by keeping their crime ‘secret’. C’mon man, is it reasonable to think that a man who stole government documents, hid those documents from the government, failed to keep those same documents secure and then ultimately shared the contents of those documents with an unauthorized individual before selling the info to a publisher would be elected POTUS?
WTH does it take for people to wake up and see a con man for what he is?
-Tyrannical actions as a leader
-Clear cut criminal activity as VP and a private citizen (as evidenced by a DOJ attorney’s investigation)
-Highly suggestive involvement in a ‘pay-to-play’ scheme for many years as a politician.
Superimpose on this situation suggestions that Joe has ‘dementia’. If true, and even with a large standard deviation, Biden’s would have to fall into the realm of an outlier in terms of progression of dementia.
Take a real life example and then do the ‘math’:
A seemingly somewhat confused old man named Vince Giganti eluded DOJ antagonists (as opposed to the DOJ being Joe’s lieutenants) for years. Not only did old Vince successfully employ the ‘Bathrobe Defense’ defense for decades against the DOJ and the like, he ran the Genovese family for decades while doing so.
While you may be thinking Joe is not sharp enough to not sharp enough to run a government (you may be right), consider it may well be that his handlers have enough crap on him that they are secure in their confidence of his following their directions on and off stage.
So, in doing the ‘math’, the only question is: Can you add?
Anon,
Are you joking.
He’s been in Congress (Senate) for over 40yrs.
Of course he’s a con man. Duh!
-G
You are not only stating the obvious, you are speaking to the choir. The original comment was directed at the horde of sycophants that are incapable of seeing the forest for the trees. Apparently you do not count yourself among them…good for you.
None of these leftist actions are based in law.
Time for all involved to be prosecuted and jailed.
Thank you, Professor, for this column. I have not previously seen any analysis of the privilege claim. Your column makes it clear that the withholding of the tape is clear naked power.
Once again, GEB hits it out of the park. I hope Mr. Turley is paying attention to this excellent commentator. Wondering if they would consider for running for National Office? One can hope!!!
Dear Mr. Turley, It is past time for those of us on the right to stop wringing our hands about the “two tiered” justice system. We need to look for people who will adhere to the rule of law, no matter who is involved, and get them into office. Is there anyone willing to take on this corruption in the Justice Department?
I agree, the time for polite discussion has long since passed.
It’s irrelevant anyway (Biden’s executive privilege).
He’s cooked his Goose.
His 10% Grifting Machine has been exposed,
His Burisma-Ukraine/Russian Gas War has been exposed,
His “Bidonomics” has been exposed (Idiotic),
His Administration Staff has been exposed (as Idiots),
His Mental State has been exposed, …
It’s over for Joe. I think that the coming Debates with Trump will not only be sad, but should be considered Elder Abuse.
In fact the DNC is Abusing Us as well with this charade.
The facts are, We have All lost TIME over the past 4 years of the DNC/Biden/Shadow-State Faction regime. It has been exposed.
The Voldemortian Regime is an applicable caption.
I agree, but until we can undo the prog/left money machine (who are not elected officials) nothing will change.
I would say that, in light of Hur’s finding that Biden lacks the mental capacity to move forward with an indictment that would allow republican’s, in the future, to undue or at least attempt to undue, anything Biden did after that point, pardons, budgets, treaties, anything, under the theory that he lacked the mental capacity to make informed decisions by this point in his presidency. You really can’t be found to lack mental capacity only for the bad stuff you do, but be perfectly fine for anything else. It might not (probably not) fly very far, but it would tie up Biden in court (a la Trump) for the rest of life.
Plausible deniabilty brought to fruition by Hur.
“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.”
Is he really the one running things? My bet is on the man behind the curtain.
We all know 90% if the facts about the bidens, Clinton’s, and Obama. We also know we have a corrupt and partisan justice department. No sense dwelling on the obvious and better we spend our energies on ridding this nation of such corruption and reestablish trust in our nation
Is it a transcript or a commentary?. Only the tape can tell.
Yes. They’ve been caught editing other
much more innocuous transcripts for Biden
so it wouldn’t be a surprise they did it with this one.
“Biden is withholding the audiotape of his own interrogation by Special Counsel Robert Hur, even though the transcript has been released as unprivileged.”
I think that there could, and possibly should, be a multi-pronged response to this novel assertion, not limited to lawfare only. Since the full transcript is evidently in the public domain, if I were a highly-placed GOP political operative, I would hire a couple of skilled impersonators to play Hur and Biden, and make a simulated video interview. If possible (uncertain) I would make Biden’s physical and mental decrepitude appear to be even worse than in reality. Then I would post the video to YouTube (and Rumble all alternative sites, since Google would likely take it down) and broadcast the link all over the known internet. I’d bet that would produce some interesting reactions from the Administration and the Democrats. possibly forcing them to release the real thing.
Legal duct tape, whatever works