President Biden has asserted executive privilege over the audio recordings from the special counsel investigation into his handling of classified materials and will refuse congressional requests to hand them over, the White House and the Justice Department said in separate letters to House Republican leaders Thursday.
Biden’s assertion of executive privilege means that Garland is prohibited from releasing the tapes to Congress. It could exacerbate already high tensions between the Biden administration and Congress and further motivate Republicans to hold Garland in contempt.
According to a letter between the attorney general and president that was made public Thursday, Garland asked Biden to say the recordings were privileged and said releasing the recordings to Congress could harm future efforts to get officials to cooperate with investigations and sit for taped interviews.
In public remarks at Justice Department headquarters, Garland sharply rebuked what he characterized as the congressional committees’ repeated disparagement of the law enforcement agency, which he said places its prosecutors and investigators in danger. He vowed to “protect this building and its people.”
“There have been a series of unprecedented and, frankly unfounded, attacks on the Justice Department,” Garland said in the hallway outside his office. “This effort to use contempt as a method of obtaining our sensitive law enforcement files is just the most recent.”
The White House letter to the House Republicans notes the transcripts of the interviews have already been provided to lawmakers and accuses Republicans of wanting to “distort” the recordings for political gain.
“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 Edward N. Siskel, counsel to the president. “Demanding such sensitive and constitutionally-protected law enforcement materials from the Executive Branch because you want to manipulate them for potential political gain is inappropriate.”
House Republicans have slammed the Justice Department’s investigations into both Biden and Donald Trump as politicized — claiming the current president should be prosecuted, while his predecessor should not.
Trump faces a federal indictment in D.C. for allegedly trying to block the results of the 2020 election. He also faces 40 federal charges in Florida over accusations that he kept top-secret government documents at Mar-a-Lago — his home and private club.
But the Biden and Trump document investigations are notably different, with Trump charged with thwarting government demands to return the materials. Federal officials say Biden cooperated throughout his investigation and took quick steps to return official materials after his lawyers and aides found them in 2022 and 2023.
Republicans have made Trump’s separate, state-level hush money trial — currently underway in Manhattan — a cause célèbre, calling it a sham and falsely linking it to the federal investigations. Many Republicans on the oversight committee went to New York to show support for Trump in the courtroom Thursday, prompting the committee to delay its vote on the Garland contempt motion from late morning until 8 p.m.
Presidents can assert executive privilege to keep certain internal executive branch communications private from other government branches. It is not unprecedented for an attorney general to ask a president to do so for investigative materials, said Douglas N. Letter, the former general counsel to the U.S. House, though it’s typically not a public request.
“These types of claims are very routinely made — privately,” Letter said.
In 2012, then-attorney general Eric Holder requested that President Barack Obama invoke executive privilege and refuse Congress’s requests to give them some records about “Fast and Furious,” the botched Phoenix-based gun-tracking operation that allowed guns to flow illegally onto U.S. streets and into Mexico.
Obama’s request was challenged in court, and the Justice Department eventually agreed to release the records.
The Biden situation is more unusual because the materials the president seeks to withhold from Congress involve a Justice Department investigation into himself.
Garland appointed Hur in January 2023 to investigate the handling of classified documents found at a former Biden office and his Delaware home. Hur, who interviewed Biden in October, concluded in his final report that there was not enough proof to charge the president with crimes. But in the same 345-page document, he wrote that his decision was in part influenced by the fact that if Biden were prosecuted after leaving the White House, 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.”
Garland says he has already made extraordinary efforts to accommodate House Republican requests, including handing over the transcript from the Biden interview, which is not typically done.
House Republicans’ impeachment inquiry into Biden and his family’s finances has stalled in recent months, bedeviled by a lack of hard evidence and some members’ doubts about the viability — and political effectiveness — of the effort. But top Republicans, who are seeking to tie the president to foreign business deals involving his son Hunter Biden, argue that Garland is to blame for their lack of progress.
In a report released this week, oversight Chairman James Comer (R-Ky.) wrote that the committee needed all documents and communications related to the special counsel’s interview to determine “whether President Biden willfully retained classified information and documents related to, among other places, Ukraine to assist his family’s business dealings or to enrich his family.”
Rep. Jamie Raskin (Md.), the top Democrat on the Oversight Committee, retorted in a statement that Republicans are “trying to blame Attorney General Merrick Garland for their own protracted comedy of errors.”
“The Attorney General gave Republicans the information they asked for, and it’s delightfully absurd to suggest that listening to the President’s words instead of just reading them will suddenly reveal the mystery high crime and misdemeanor the Republicans have been unable to identify since 2023,” he added.
With a threadbare majority, House Republicans would need near-unanimity to hold Garland in contempt of Congress.
Comer has so far produced no hard evidence that Joe Biden was a direct participant in or beneficiary of his son’s business activities. Though some of Hunter Biden’s close associates have placed his father in proximity to people involved with some of his deals, none of the allegations have proved the GOP’s claims that Hunter Biden’s activities fueled an influence-peddling operation that enriched the president and his family.
In interviews with right-wing media outlets, Comer has indicated that his investigation will come to an end imminently but not without potential criminal referrals. It remains unclear whether lawmakers will formally accuse Biden of a crime — and what crimes they may allege he committed.
House Republicans have previously attempted to hold other administration figures in contempt.
Last year, Comer led the charge to hold FBI Director Christopher A. Wray in contempt of Congress for failing to comply with a subpoena demanding he hand over in full an FBI document that contained unsubstantiated allegations about Biden and his family.
The Justice Department later charged the former FBI informant whose allegations were contained in that document with lying to authorities about a multimillion-dollar bribery scheme. The ex-informant has pleaded not guilty.
