House Republicans, Justice Department face off over Biden audiotapes of interview with special counsel

Washington — Attorneys for Republicans on the House Judiciary Committee and Attorney General Merrick Garland were in court Monday in a dispute over audio recordings of President Biden's interview with Robert Hur, the special counsel who investigated his handling of classified materials after his vice presidency. The judge found she she was having "trouble with both sides," albeit on different issues in the case.

The committee sued Garland in July in the U.S. District Court in the District of Columbia, escalating the fight over the audiotapes of Hur's interview with the president and the ghostwriter of his book, Mark Zwonitzer. Hur interviewed both men as part of his investigation. 

Hur declined to seek criminal charges against Mr. Biden for his handling of the documents. The president said he was largely unaware of how classified government records from his decades-long career in public office ended up in his homes and private office, according to the transcript of the interview, which was released in March. Hur said the evidence did not establish beyond a reasonable doubt that Mr. Biden had violated the law. 

However, the special counsel made a number of observations about the president's memory that enraged the White House and provided political ammunition to Republicans, whose impeachment inquiry into the president fizzled out. 

U.S. District Court Judge Amy Berman Jackson, who is presiding over the case, questioned what effect the audio recordings would have, if any. She said Mr. Biden's voice and demeanor in the recordings are a "marginal detail" when the content of the interview is already public. 

"How does that narrow piece of information bear on the impeachment inquiry issue whether the president used his office to enrich himself in connection with his family's business dealings with foreign parties? What do his poise and demeanor have to do with that?," she asked the committee's lawyers. 

But she also noted that the president is a public figure who is accustomed to his voice being heard by a large audience, and questioned the Justice Department over why this circumstance is different.

The judge also asked both parties if she should listen to the recordings to aid in her decision over their release to the committee. Both parties did not think that was necessary. 

"I'm having trouble with both sides on different issues," she said at the end of the hearing. 

Republicans on the panel have argued that they needed the audiotapes "because they offer unique and invaluable insight about information that cannot be captured in a transcript, such as vocal tone, pace, inflections, verbal nuance, and other idiosyncrasies," according to the lawsuit, which asked the court to order the Justice Department to hand over the material.

"Audio recordings are better evidence than transcripts of what happened during the special counsel's interviews with President Biden and Mr. Zwonitzer," the lawsuit said. "For example, they contain verbal and nonverbal context that is missing from a cold transcript. 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 GOP-led House voted in June to hold Garland in contempt of Congress after the White House asserted executive privilege over the recordings, blocking their release to lawmakers.

The Justice Department, which has a longstanding policy to not prosecute officials for refusing to turn over subpoenaed information shielded under executive privilege, declined to take up the contempt referral. 

But Republicans have argued that the president waived executive privilege when the Justice Department released transcripts of the interviews.  

In August, the Justice Department said in a court filing the committee failed to acknowledge "the extraordinary level of disclosure the Executive Branch has already made, the lack of significant Congressional need for further information and the strong law enforcement interest in protecting the integrity of future investigations." 

"The committee's vanishingly small informational needs come nowhere close to overcoming the assertion of privilege. For these reasons, the court should rule in favor of the department," the Justice Department said, asking the court to dismiss the case. 

On the committee's assertion that it needs the audiotapes to evaluate Mr. Biden's mental state, the Justice Department argued that Hur "testified before the committee on this very question, and that hearing provided ample opportunity to probe the special counsel's 'subjective view.'" The argument that the recordings are critical to the impeachment inquiry "fares no better," it said. 

"The committee also fails to identify any questions directed to whether President Biden sought to enrich himself by retaining classified information. Instead, it piles conjecture on conjecture, arguing that the recordings may reveal whether President Biden 'seemed deceptive' when discussing 'the classified materials that he ultimately relied upon when writing his memoir,' which may lead the committee to 'decide that additional investigative steps are necessary,' which may uncover 'an abuse of office that could constitute an impeachable offense,'" it said.