The DOJ has consistently cited executive privilege in withholding the audio recordings of Biden's interview with special prosecutor Robert Hur.
They state that "this Court should enter a preliminary injunction ordering Garland to comply with the Judiciary Committee’s Subpoena. Alternatively, the Court should grant summary judgment to the Committee on the issue of executive privilege, declare that Garland’s refusal to produce the audio recordings is unlawful, and order Garland to produce the audio recordings to the Committee."
Court documents show that House attorneys have argued for the urgency of a preliminary injunction because the “clock on the 118th Congress” is “ticking.” They contend that the audio recordings are essential for lawmakers to fulfill their oversight responsibilities and conclude their impeachment inquiry.
The tapes in question stem from Hur's interview with Biden last fall as part of an investigation into allegations of mishandling classified material. While the investigation found Biden to have mishandled classified documents, it opted against prosecution, citing concerns that Biden would be perceived by a jury as a "well-meaning, elderly man," with a poor memory. The tapes could reveal more about the president’s mental abilities as he has faced more pressure to step out of the race in the 2024 presidential election.
Despite the DOJ releasing a transcript of the interview, Republicans argue that the transcript alone is insufficient. They said that the audio tapes represent the "best evidence," particularly as the transcript has reportedly been altered, including the removal of "filler words" used by the president. “The transcripts do not capture either verbal context (tone, emphasis, inflection, volume, and pace) or nonverbal context (hesitating and pausing),” House attorneys argued.
The DOJ has consistently cited executive privilege in withholding the audio recordings. It has also claimed that their release could make them susceptible to manipulation by artificial intelligence.
Attorney General Merrick Garland, despite being subpoenaed for the tapes, has not complied, citing executive privilege by the White House. House Republicans responded by attempting to hold Garland in inherent contempt and filed a lawsuit at the beginning of July.
Should the judge grant the preliminary injunction, Garland would be required to comply with the subpoena immediately while the case undergoes further legal review.
Beyond the House Judiciary Committee, other entities including watchdog group Judicial Watch and CNN have also sought access to the tapes under the Freedom of Information Act (FOIA). However, the DOJ has contended that FOIA exemptions related to executive privilege justify their refusal to release the recordings.
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