Biden invokes executive privilege to shield Robert Hur interview tapes from House

WASHINGTON – President Joe Biden invoked executive privilege Thursday to keep the recording of his deposition about storing classified documents at his home confidential as House Republicans set two committee votes to hold Attorney General Merrick Garland in contempt for refusing to release the recording.

The Justice Department's Office of Legal Counsel determined the recording falls under executive privilege and Garland shouldn't be punished for following the president's order to keep the recording confidential, according to Carlos Uriarte, an associate attorney general.

The Office of Legal Counsel has long held that executive privilege extends to a "closed criminal investigation where disclosure is likely to damage future law enforcement efforts," Garland wrote to Biden on Wednesday.

The confrontation creates another election-year flashpoint between Republicans who have threatened Biden and Garland with impeachment and the Democratic administration dismissing the charges as partisan theater. At issue are recordings of the controversial interview that led Special Counsel Robert Hur to report that Biden is a "sympathetic, well-meaning, elderly man with a poor memory."

The House Judiciary Committee and the House Oversight and Accountability Committee each scheduled votes Thursday on contempt resolutions. The Judiciary Committee voted 18-15 along party lines to approve the contempt resolution after a four-hour hearing. The Oversight Committee also voted 24-20 along party lines to approve it's own contempt resolution after a testy hearing.

If the resolutions are approved, the full House would have to consider them. But the Justice Department has declined to pursue charges against two previous attorneys general the House held in contempt: Republican Bill Barr in 2019 and Democrat Eric Holder in 2012. It's also unclear whether a full vote in the House would succeed, considering Republicans control the lower chamber with a razor-thin margin. Also, a handful of centrist and moderate GOP lawmakers have grown averse to the party's battles with the Justice Department.

Garland told reporters the threat of contempt was part of “a series of unprecedented and frankly unfounded attacks on the Justice Department,” which he said conducted investigations “according to the facts and the law without political influence.”

“We have gone to extraordinary lengths to ensure that the committees get responses to their legitimate requests,” Garland said. “But this is not one. To the contrary, this is one that would harm our ability in the future to successfully pursue sensitive investigations.”

Here's what we know about the investigation:

House GOP seeks recording of Biden deposition about classified documents

Biden’s personal lawyers found classified documents at his Penn Biden Center office in Washington, where he worked in the years between being vice president and president. Biden then allowed the FBI to search his home in Wilmington, Delaware, where agents found more classified documents.

Former President Donald Trump, Biden’s presumptive Republican opponent in the fall election, has argued he was treated differently. Trump faces federal charges for hoarding classified records at Mar-a-Lago in Florida after leaving the White House.

But White House officials noted Biden returned documents to the government voluntarily and cooperated with authorities, rather than defying a subpoena and refusing to return documents as Trump did.

Garland appointed Hur to investigate Biden independently. The prosecutor interviewed the president in October about the documents dating to his time as a senator and as vice president. Hur decided not to charge Biden but his report called him a "sympathetic, well-meaning, elderly man with a poor memory."

Biden forcefully disputed the characterization of his mental ability. Edward Siskel, counsel to the president, accused Republicans of seeking the recording for political reasons.

“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,” Siskel wrote to the two House chairmen.

Lawmakers spar over Biden's invocation of executive privilege

House Speaker Mike Johnson, R-La., accused Biden of being “afraid for the citizens of this country and everyone to hear those tapes,” at a press conference Thursday.

“The American people will not be able to hear why prosecutors felt the President of the United States was in Special Counsel Robert Hur’s words, a quote, elderly man of poor memory,” Johnson said. Biden’s decision to withhold the audio of the interviews, the speaker argued, confirms “what the special counsel has found and would likely cause I suppose in his estimation such alarm with the American people.”

At the Judiciary Committee, the chairman, Rep. Jim Jordan said the recording is necessary for lawmakers to gauge whether Hur made the right decision in declining to prosecute Biden.

“The recordings are necessary,” Jordan said. “The transcripts are not sufficient evidence of the state of the president’s memory, frankly because the White House has a record of altering the transcripts.”

The top Democrat on the committee, Rep. Jerrold Nadler, D-N.Y., said the Justice Department has largely complied with congressional requests and produced 92,000 pages of documents for various inquiries. He said a committee vote would do nothing more than smear Garland’s reputation.

“Simply put, they engage in fantasy,” Nadler said of Republicans. “It is a total waste of time.”

Judiciary and Oversight Committee approves contempt resolutions

A contempt resolution is the tool Congress uses to urge the Justice Department to consider charges against the target. But the department often rejects the recommendation, as it did when the House Judiciary Committee voted in 2019 to hold Attorney General William Barr in contempt for refusing to turn over an unredacted version of the Russia report and when in 2012 the House held Attorney General Eric Holder in contempt for failing to turn over documents related to the "Fast and Furious" scandal.

Rep. Jeff Van Drew, R-N.J., said it’s essential for lawmakers to get the recording of Biden, to know whether Hur’s assessment about Biden’s age and mental state to avoid charges was accurate.

“If our commander in chief is so incompetent that he cannot stand trial – that he is not fit to stand trial – then he is too incompetent for God’s sake to be the leader of the most powerful nation on the face of the earth,” Van Drew said.

But Rep. Hank Johnson, D-Ga., said the contempt vote against Garland came after the committee and Hur failed to find any reason to charge Biden criminally.

“After spending $20 million, this committee has absolutely nothing to show for it,” Johnson said. “They tried to pin a classified documents case on President Biden.”

The Oversight Committee also saw a testy back and forth hearing on late Thursday evening, in which Democrats assailed Republicans for holding the meeting so late to accommodate a handful of GOP members who had traveled to former President Donald Trump's trial in New York City.

"Our originally scheduled performance was supposed to be at 11 a.m. today, but it was postponed when members of the majority chose to join a mass spiritual pilgrimage to the New York criminal trial of a Florida man," Rep. Jamie Raskin, D-Md., the top Democrat on the Oversight Committee said.

Is invoking executive privilege rare?

All presidents invoke executive privilege to keep information confidential, but it is relatively rare and happens typically during congressional investigations, according to the nonpartisan Congressional Research Service. For example, George Washington invoked it during an investigation of a military operation against Native Americans, Barack Obama asserted it during the investigation of the Operation Fast and Furious scandal and Trump asserted it during the investigation of the Capitol attack on Jan. 6, 2021.

Two of Trump's former aides, Steve Bannon and Peter Navarro, defied congressional subpoenas by claiming Trump had invoked executive privilege but were convicted of contempt. Navarro is serving a jail term and Bannon has appealed his conviction.

Special counsel Robert Hur defended report critical of Biden's memory

Hur was grilled in March by lawmakers from both political parties during a fiery House Judiciary Committee hearing, either for going too soft by not charging Biden or too harsh for criticizing his memory.

"What I wrote is what I believe the evidence shows, and what I expect jurors would perceive and believe," Hur said. "I did not sanitize my explanation. Nor did I disparage the president unfairly."

Two House panels subpoenaed AG Garland for Biden recording

Rep. James Comer, R-Ky., head of the Oversight Committee, and Jordan, R-Ohio, head of the Judiciary Committee, subpoenaed Garland for the recording of Biden’s deposition, in addition to the transcript that has already been released.

"The verbal nuances in President Biden’s answers about his mishandling of classified information would assist the Committees’ inquiry into whether he abused his office of public trust for his family’s financial gain," said the committee report to accompany the resolution. "In short, the audio recordings would offer unique and important information to advance the Committees’ impeachment inquiry."

But the Justice Department refused to provide the recording by arguing it had already provided lawmakers with all the information they needed.

"As the Department has previously explained, producing sensitive law enforcement information to Congress risks seriously chilling our ability to conduct investigations and prosecutions, including securing cooperation from witnesses and targets," Uriarte wrote the committees.

Comer says recording key to weighing Biden's fitness for office

Comer said he scheduled the contempt vote to hold Garland accountable.

“It’s a five-alarm fire at the White House," Comer said Thursday. "Clearly, President Biden and his advisers fear releasing the audio recordings of his interview because it will again reaffirm to the American people that President Biden’s mental state is in decline."

Contributing: Ken Tran

This article originally appeared on USA TODAY: Biden invokes executive privilege to keep Hur interview confidential