President Biden’s assertion of executive privilege to avoid releasing audio recordings of his interviews with Special Counsel Robert Hur is raising eyebrows among some legal experts.
The White House on Thursday revealed that Biden asserted executive privilege over the audio recordings at the request of Attorney General Merrick Garland. During a media briefing, White House press secretary Karine Jean-Pierre said it was Garland’s suggestion that “law enforcement files like these need to be protected.”
“And so the president made his determination at the request of the attorney general,” Jean-Pierre told reporters. She referred further questions to the White House counsel’s office.
But some experts say that the use of executive privilege to protect the recordings is “extremely problematic” and “strictly a political decision.”
BIDEN ASSERTS EXECUTIVE PRIVILEGE OVER RECORDINGS FROM CLASSIFIED DOCUMENTS PROBE
House Republicans have pushed Attorney General Merrick Garland to release the tapes of the interviews and threatened to hold him in contempt of Congress if he didn’t. (Chip Somodevilla/Getty Images)
“Executive privilege is designed to respect constitutional separation of powers and to enable a president to engage in candid conversations with his top advisers in order to form judgments and reach decisions,” John Malcolm of the Heritage Foundation and a former federal prosecutor told Fox News Digital.
“[It] is not designed to hide information that may prove to be embarrassing to a president or some other government official or operation,” Malcolm said. He noted that the transcript of the entire interview has already been released.
“Hence, there is no national security or deliberative process reason for not disclosing the recordings of the interview. The only conceivable reason why President Biden would want to prevent the recordings from being disclosed is because he is worried about the public will react to his demeanor and recall when answering Special Counsel Hur’s questions, especially since serious questions have already been raised about his mental acuity and his ability to serve effectively as our president,” he said.
“If he has some other, legitimate reason for withholding that information — and it is hard to fathom what that might be — he needs to say what it is,” Malcolm added.
Hur led the investigation into Biden’s handling of classified documents following his departure as vice president under the Obama administration. Hur announced in February that he would not recommend criminal charges against Biden for possessing classified materials after his vice presidency, saying Biden is “a sympathetic, well-meaning, elderly man with a poor memory.”
JUSTICE DEPARTMENT REBUKED FOR DELAY TACTICS IN BIDEN-HUR TAPES
The Department of Justice on Thursday informed House Republicans investigating President Biden that the executive branch would not turn over subpoenaed materials from Special Counsel Robert Hur’s investigation. (Win McNamee/Getty Images)
Hur wrote in the report that “it would be difficult” to convince a jury to convict Biden of any willful crime, citing his advanced age.
House Republicans have pushed Garland to release the tapes of the interviews and threatened to hold him in contempt of Congress if he didn’t.
The Department of Justice on Thursday informed House Republicans investigating Biden that the executive branch would not turn over subpoenaed materials from Hur’s investigation.
“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,” Associate Attorney General Carlos Uriarte wrote to Reps. Jim Jordan, R-Ohio, and James Comer, R-Ky., chairmen of the Committee on the Judiciary and Committee on Oversight and Accountability, respectively.
Garland on Thursday spoke to reporters on Capitol Hill, saying, “There have been a series of unprecedented, frankly unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files, is just the most recent effort to threaten, 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 SUBPOENA DOJ MATERIALS RELATED TO SPECIAL COUNSEL HUR INTERVIEW WITH BIDEN
The House Judiciary and Oversight Committees on Thursday evening advanced a resolution that would hold Garland in contempt despite the president’s privilege assertions. House Speaker Mike Johnson, R-La., will decide whether to bring the resolution to the full House floor for a vote.
John Shu, a former official in both Bush administrations, said, “It certainly looks like the Biden administration is trotting out Attorney General Garland to be the public face of this weak executive privilege claim, so that neither President Biden nor his senior White House staff have to be, and so that the White House press secretary can avoid answering questions about it and simply refer them to the Justice Department.”
Executive privilege, he said, “is not supposed to encompass a recording of a president’s voluntary, represented interview, especially where he waived privilege and released the transcript, which removes any national security issues.”
“It’s not unreasonable for Congress to ask for these recordings because transcripts aren’t always accurate, and this White House previously has edited official transcripts when the President mistakenly read aloud his teleprompter cues,” Shu observed. “Transcripts also generally don’t reflect verbal intonations or emotive expressions such as anger, sarcasm, or humor,” he added.
Hur announced in February that he would not recommend criminal charges against President Biden for possessing classified materials following his departure as vice president under the Obama administration. (Saul Loeb/AFP via Getty Images)
Former federal prosecutor Andy McCarthy told Fox News Digital in an interview that Biden’s privilege assertion is “crude politics.”
“They are trying to manufacture a legal cover for something that’s strictly a political decision. The tape would be very embarrassing for Biden. So he’s stonewalling on it, and they’re trying to wrap a legal bow around it, but there’s no legal reason for withholding the recording,” McCarthy said, adding that, should Republicans take the matter to court, they likely wouldn’t succeed due to the privilege assertions.
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“What Biden has obviously decided is that it would be a lot more damaging to release the tape than it would be to take the hit that he’s taking for withholding it,” McCarthy said.
“It’s just crude politics. It’s nothing more than that,” he said.
Fox News Digital reached out to the White House and DOJ for comment.
