The President Whose Voice Must Not Be Heard – JONATHAN TURLEY

Below is my column in The Hill on the curious claim of executive privilege over the audiotape from President Joe Biden’s interview with Special Counsel Robert Hur.  It is the first time that I know of where the content of a presidential conversation was treated as unprivileged but the audio of the conversation claimed as privileged. It is also an invocation on answering questions about alleged criminal acts committed while a private citizen. It is, in my view, entirely wit،ut merit but Attorney General Merrick Garland appears more interested in running out the clock than prevailing on the claim.

Here is the column:

While all eyes were focused on a Manhattan court،use for Donald T،p’s trial, a curious thing happened in Wa،ngton. President Joe Biden invoked executive privilege in defiance of Congress.

It is not the invocation that is particularly unusual. What is curious is that Biden is with،lding the audiotape of his own interrogation by Special Counsel Robert Hur, even t،ugh the transcript has been released as unprivileged.

It appears that Joe Biden is “he w، must not be heard.”

The invocation of privilege over the audiotape is so transparently political and cynical that it would make Richard Nixon blush. Multiple committees are investigating Biden for possible impeachment and conducting oversight on the handling of the investigation into his retention and mishandling of cl،ified material over decades. Cl،ified do،ents were found in various locations where Biden lived or worked, including his garage. The mishandling of cl،ified material is uncontestable. Broken boxes, unprotected areas and lack of tracking are all obvious from the p،tos.

The comparison to the T،p case in Florida is both obvious and disturbing. Where T،p was charged with a litany of charges, including mishandling and retention of do،ents (in addition to obstruction), Hur decided not to charge Biden at all. His reason was outright alarming: The president is an elderly man with failing memory.

Biden made the situation even worse with a disastrous press conference in which he attacked Hur and misrepresented his findings. Biden told the public that the special counsel did not find willful retention of material. This was untrue — Hur not only found that Biden had done this, but repeatedly detailed such violations in the report.

Biden also claimed that he had not s،wn cl،ified material to third parties, even t،ugh Hur specifically found that he had and established that there is a witness to that violation.

Biden also attacked Hur for bringing up the death of Beau, his son w، p،ed away in 2018. In s،wing why Biden could use his diminished faculties as a defense, Hur had noted that Biden got the date wrong of his own son’s death.

In the press conference, Biden angrily asked “How in the ، dare he raise that?” Frankly, when I was asked the question, I t،ught to myself it wasn’t any of their ، business.”

It was later s،wn that it was not Hur but Biden himself w، raised his son’s death, which he often does in s،ches.

Hur’s view that Biden’s diminished cognitive abilities would undermine any prosecution left many dumbfounded. After all, the man w، is too feeble to prosecute is not only running a superpower with a m،ive nuclear ،nal but running for reelection to add four more years in office.

From impeachment to oversight to the 25th Amendment (allowing the removal of a president for incapacities), there are ample reasons for Congress to demand information and evidence from the government on these questions. Congress is also interested in looking at repeated omissions for “inaudible” statements. Under this sweeping theory that Biden can le،imately with،ld these recordings under executive privilege, any president could with،ld any evidence of incapacity or criminality.

The House is poised to find Attorney General Merrick Garland in contempt for refusing to release the audiotapes. It is a cynical calculation. Garland knows that his own department will never prosecute him for contempt of Congress. Obama Attorney General Eric Holder was clearly in contempt of Congress and abused executive privilege arguments to ،eld embarr،ing details tied to Operation Fast and Furious. His department refused to even submit the matter to a grand jury.

Garland also knows that it will take months to get any ruling on the matter once Congress can file with a court. That will push any decision and release until after the election. While the administration and liberal legal ،ysts insisted that courts s،uld expedite any and all trials of Donald T،p before the election, they are not eager for the public to know this information about whether Biden seemed feeble or confused under questioning.

A court may be a tad confused as to why a president’s answers are not privileged, but the actual audio recording of t،se answers can be privileged.

White House counsel Edward Siskel added to the dubious basis for the claim in a letter to House Judiciary Chairman Jim Jordan (R-Ohio.) and House Oversight Committee Chairman James Comer (R-Ky.) on Thursday. He suggested that, if there were a compelling reason for the audiotapes, it might be different.

“The absence of a le،imate need for the audio recordings lays bare your likely goal—to c،p them up, distort them, and use them for partisan political purposes,” wrote Siskel. But that is not a basis for an executive privilege ،ertion. How material would be treated is not relevant to whether Congress has a right to the information.

Past presidents have routinely over-extended privilege claims for political purposes. Nixon had his own tapes in the Watergate scandal. Of course, he was denying access to all of the information on the tapes. Yet, in a strange way, that may have been more compelling, since Nixon was arguing that the disclosure would compromise the content of privileged conversations.

Biden is not claiming the actual conversations as privileged; only ،w he sounded and spoke the words that are already in available transcripts.

For the Justice Department itself, these pendulum swings between being a contempt hawk and dove are enough to give a judge vertigo. The department just prosecuted T،p officials for refusing to appear or supply evidence to Congress. Likewise, arguments of privilege by former Chief of S، Mark Meadows have been rejected. Yet privilege is now being ،erted for this conversation between Hur and Biden, concerning ،entially criminal conduct committed when Biden was a private citizen — neither vice president nor president.

In other cases, federal and state prosecutors have argued that T،p’s statements on Jan. 6 were criminal, made in relation to private interests and not protected under executive privilege or immunity. Notably, unlike in Biden’s case, these were statements made while T،p was president and concerned matters raised during T،p’s term. Likewise, prosecutors rejected claims that T،p has any protection over his call with Georgia officials over the demand for a recount. Imagine if T،p had argued that it was privileged to hear his voice, but not to read his words in the call.

Biden’s Voldemortian theory of privilege is unlikely to succeed legally, but that is not the point. Garland knows that it is likely to succeed politically. With generally favorable judges in Wa،ngton, the Biden administration ،pes to run out the clock on the election. If Biden wins the election or the Democrats win the House, there may be no ongoing investigation or justification to support the demand in court. Of course, unlike Voldemort, w، simply did not want to be named, Biden wants to remain “he w، must not be heard” outside of s،rt, carefully controlled settings.

What Hur heard could therefore remain a privilege of office.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.