Conservative Group Files Emergency Court Motion to Get Biden–Hur Audio Tapes
Conservative Group Files Emergency Court Motion to Get Biden–Hur Audio Tapes

By Tom Ozimek

The Heritage Foundation, a conservative think-tank, has filed an emergency motion in a Washington court seeking to accelerate the release of audio tapes of President Joe Biden’s interview with special counsel Robert Hur, over which the White House recently asserted executive privilege.

The emergency motion, filed on May 17 at the U.S. District Court for the District of Columbia, seeks to modify the court’s briefing schedule for three pending Freedom of Information Act (FOIA) lawsuits that seek the audio recordings of roughly five hours of interviews President Biden had with the special counsel in relation to a classified documents mishandling probe.

The motion seeks to speed up the court battle over the release of the tapes, with the Heritage Foundation arguing in the filing that President Biden’s assertion of executive privilege over the tapes on Thursday adds urgency to the FOIA lawsuits and that the Department of Justice (DOJ) didn’t need as much time to prepare its response to the FOIA requests as it previously claimed.

“The Department’s asserted time constraints were misleading,” the Heritage attorneys wrote in the motion. “The Department did not need the time to prepare a position and declarations it twice told the Court it did. A formal assertion of Executive Privilege is an extraordinary undertaking.”

U.S. District Judge Timothy Kelly has set a schedule for the FOIA lawsuits that gives the DOJ until May 31 to submit filings in support of withholding the tapes. It also allows various other filings to be made through July 29. In their emergency motion, Heritage attorneys want that schedule modified to give the DOJ until May 27 to make their arguments and that the deadline for all other filings be set at July 1.

The tapes are at the center of a dispute between House Republicans and Attorney General Merrick Garland, who has defied a subpoena for them and faces contempt proceedings.

House Republicans have said they want to obtain the recordings to verify Mr. Hur’s assertions that President Biden couldn’t recollect certain facts during the interview. They have alleged a two-tiered justice system given that Mr. Hur opted not to charge President Biden while former President Donald Trump faces multiple charges in connection with his own classified documents probe.

“At trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” the special counsel wrote in his 388-page report, which found that President Biden “willfully retained and disclosed classified materials” when he was a private citizen after the end of his term as vice president during the Obama administration.

Mr. Hur, who faced criticism from Democrats and the White House for remarks on the president’s cognitive capacity in his report, didn’t recommend charges against President Biden, in part because of his ailing memory.

While Republicans have said they want the tapes to verify Mr. Hur’s assertions, Democrats have argued that Republicans want to use the tapes in campaign ads to portray President Biden as a frail leader with poor memory who’s too old to serve another term in the Oval Office.

Mr. Hur revealed in testimony before the House Judiciary Committee in March that White House officials sought to soften his report’s characterizations of President Biden’s ailing memory.

The White House did not respond to a request for comment.

More Details

President Biden on Thursday asserted executive privilege over the interview tapes, with the White House counsel’s office notifying House Republicans of the move just hours before they were expected to recommend holding Mr. Garland in contempt for refusing to hand them over.

Mr. Garland and White House Counsel Ed Siskel defended the executive privilege assertion as necessary because it could impact future investigations. In a May 15 letter to the president, Mr. Garland said that the “committee’s needs are plainly insufficient to outweigh the deleterious effects that the production of the recordings would have on the integrity and effectiveness of similar law enforcement investigations in the future.”

President Biden’s counsel accused House Republicans of wanting the tapes to craft political attack ads.

“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. 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,” Ed Siskel, President Biden’s counsel, wrote to Reps. James Comer (R-Ky.) and Jim Jordan (R-Ohio) in a May 16 letter.

Still, the House Oversight Committee (chaired by Mr. Comer) and the House Judiciary Committee (chaired by Mr. Jordan) both voted on Thursday to hold Mr. Garland in contempt of Congress despite President Biden’s executive privilege intervention.

In their court filing, Heritage attorneys argued that the fact that the House committees voted to recommend holding Mr. Garland in contempt “adds to the compelling and already extraordinary interest in the disclosure of the audio recording.”

The contempt measure would still need to pass the House before a referral is made to the Justice Department and it remains unclear whether House Speaker Mike Johnson (R-La.) would bring a resolution to the floor.

Mr. Johnson has been critical of efforts to block the release of the tapes.

“President Biden is apparently afraid for the citizens of this country and everyone to hear those tapes,” Mr. Johnson said at a press conference.

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