Biden invokes executive privilege on special counsel recording demanded by GOP

President Biden has invoked executive privilege to block House Republicans from obtaining audio recordings of his interviews with special counsel Robert Hur over his handling of classified documents.

The move comes just hours before House Republicans are set to meet to consider resolutions to hold Attorney General Merrick Garland in contempt of Congress for failing to turn over the files which had been subpoenaed by the House Judiciary and Oversight committees.

“Because of the President’s longstanding commitment to protecting the integrity, effectiveness, and independence of the Department of Justice and its law enforcement investigations, he has decided to assert executive privilege over the recordings,” White House counsel Ed Siskel wrote in a letter obtained by The Hill.

Siskel also called into question the motives of Republicans seeking the recordings.

“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. “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.”

The transcript of Biden’s interview with Hur, which took place over two days last October, was also released to House Republicans ahead of the special counsel’s public testimony on Capitol Hill in March.

The content makes clear the interview has little to do with the GOP’s purported interest in obtaining the audio files, which lawmakers argue could offer clues for their impeachment investigation.

While Hur’s 345-page report concluded no charges should be brought against the president, its descriptions of Biden’s memory lapses and the description of the president as a “well-meaning, elderly man” set off a political firestorm.

Among other instances, Hur cited Biden’s 2017 conversations with ghostwriter Mark Zwonitzer, which the special counsel described as “painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.”

The White House had pushed back hard against Hur’s inclusion of those details, calling them gratuitous and highlighting Biden’s willingness to voluntarily sit for an interview. But Hur has stressed that he needed to explain in his report how he came to the conclusion not to recommend charges.

Siskel noted in his letter to House Judiciary Chair Jim Jordan (R-Ohio) and House Oversight and Accountability Chair James Comer (R-Ky.) that Biden did not assert privilege over any part of Hur’s lengthy report. 

The transcript of the interview with Hur was released ahead of the special counsel’s public testimony on Capitol Hill in March.

But Garland, in a letter to Biden dated Wednesday, warned that disclosing the audio recordings risked harming future investigations by making it less likely that witnesses would cooperate.

The attorney general also argued that with Biden’s claim of executive privilege, Republicans should halt their plans to hold him in contempt.

“It is the longstanding position of the executive branch held by administration’s of both parties that an official who asserts the president’s claim of executive privilege cannot be prosecuted for criminal contempt of Congress,” he wrote.

“With the information you now have, the committees ought not proceed with contempt and should instead avoid unnecessary and unwarranted conflict.”

Garland was likely never at risk even if the committees proceed with contempt, which must then be considered by the full House. The vote acts as a referral to the Justice Department, which must determine whether to bring charges.

The effort to swerve around the GOP comes on a scattered morning for members of the two panels.

While contempt hearings were initially set to begin Thursday morning, the House Oversight Committee bumped its hearing until 8 p.m. so some of its members could attend former President Trump’s hush money trial in New York.

Still, Comer said Thursday morning that the panel would proceed with contempt regardless of the executive privilege claim by Biden.

“The White House is asserting executive privilege over the recordings, but it has already waived privilege by releasing the transcript of the interview,” Comer said in a statement.

“Today’s Hail Mary from the White House changes nothing for our committee. The House Oversight Committee will move forward with its markup of a resolution and report recommending to the House of Representatives that Attorney General Garland be held in contempt of Congress for defying a lawful subpoena.”

Updated at 11:06 a.m. ET