Release of Biden special counsel audiotapes that have 'no actual relevance' to impeachment would make White House non-cooperation more likely, DOJ says

Left: Vice President Kamala Harris. Center: President Joe Biden speaks from the Roosevelt Room. Right: Attorney General Merrick Garland (AP Photo/Susan Walsh).

To swat down a lawsuit by House Judiciary Committee Republicans that seeks to force the release of audiotapes of special counsel Robert Hur’s classified documents-focused interview of President Joe Biden, the Department of Justice responded Tuesday that, if this were to occur, voluntary cooperation by White House officials in high-profile investigations like this would be “less likely” moving forward.

The lawsuit , separate and apart from ongoing Freedom of Information Act litigation in federal court, has claimed that the assertion of executive privilege over the Biden tapes and audio of Hur’s interview of Biden biographer Mark Zwonitzer was “frivolous” and stonewalls legitimate legislative powers and purposes, such as impeachment and potentially reforming the DOJ’s “use of special counsels.”

When Hur released his report on the Biden classified documents investigation, noting that DOJ policy rules out charges against a sitting president, the special counsel said even though there was evidence Biden “willfully retained and disclosed classified materials” after his vice presidency, a jury wouldn’t want to convict the president, whom he called a “sympathetic, well-meaning, elderly man with a poor memory.”

Since that time, conservative groups and mainstream media organizations demanded the release of the audiotapes as the only way to evaluate Hur’s conclusions, since publicized transcripts and a lengthy report only go so far.

House Republicans joined the fray at the start of July, days after the Joe Biden-Donald Trump debate , suing in Washington, D.C., federal court in order to enforce a subpoena that U.S. Attorney General Merrick Garland defied in the face of a contempt threat and finding . The case was assigned to U.S. District Judge Amy Berman Jackson, remembered for presiding over the trial of Trump confidant Roger Stone , the sentencing of former Trump campaign chairman Paul Manafort, and a long-running lawsuit stemming from former U.S. Attorney General Eric Holder’s recommendation that then President Barack Obama assert executive privilege over Operation Fast and Furious documents.

In a memorandum in support of summary judgment, the DOJ argued as it has before that forcing the release of the Biden and Zwonitzer interview audiotapes would “threaten critical law enforcement interests by chilling the potential cooperation of witnesses in current and future sensitive investigations,” implicate the “privacy interests” of a non-charged individual, and open the door for “malicious” actors to distort the audio with “deepfakes.”

More Law&Crime coverage: DOJ reverses course and tells judge about ‘newly-located, verbatim transcripts’ of Biden biographer audio recordings from special counsel’ s classified docs probe

The latest filing leaned heavily on the argument that White House officials would be much less likely to cooperate if they knew recorded interviews could be released later on, which would “significantly” hamstring DOJ probes.

“But as to those recordings, the Attorney General determined that disclosure would damage core Executive Branch law enforcement interests by unacceptably risking harm to subsequent similar high-profile law enforcement investigations because witnesses in such investigations may refuse to cooperate in voluntary interviews if they know that recordings of those interviews may later be made public,” the memo said. “In light of the importance of voluntary interviews in such high-profile cases, and in particular those in which information from White House officials is needed, the Attorney General recommended an assertion of executive privilege to shield the recordings from disclosure. The President accepted that recommendation and asserted executive privilege over the recordings.”

“[I]f potential witnesses in such investigations were aware that the audio recordings of interviews could be released to Congress and potentially to the public, those witnesses would be less likely to submit to voluntary recorded interviews or may otherwise diminish the degree and extent of their cooperation, thereby significantly impairing the Department’s ability to conduct such investigations,” DOJ added later.

The DOJ asserted that the House Judiciary Republican plaintiffs have sought an “unprecedented” intervention without seeking or receiving “the authorization of the full House to pursue this action,” having “just three Members of the House of Representatives, comprising a simple majority of the Bipartisan Legal Advisory Group (BLAG)” backing the case and falling well short of standing.

Statutory law otherwise cuts against the lawsuit, which DOJ called “a particularly poor candidate for intervention.”

“The statutory authorization for the judicial enforcement of congressional subpoenas includes only the Senate, not the House, and expressly disallows the judicial enforcement of a subpoena in the face of a claim of executive privilege,” the memo continued. “In light of that intentional and specific carve-out by Congress, the Committee’s resort to other, general sources for an implied cause of action is unavailing. ”

DOJ said that while the connection between the audio sought and the stated legislative purpose of evaluating DOJ’s “use of special counsels” is “tenuous” at best, the lawmakers also haven’t shown that they need for the audio for impeachment purposes, since that probe “has no plausible connection to the demeanor and tone of the participants in Special Counsel Hur’s interviews.”

“[E]ven assuming that a connection between the interviews and the impeachment inquiry existed—which it does not—the Committee offers no explanation as to why the audio recordings contain insight into whether President Biden committed an impeachable offense,” the filing said.

The already available transcripts show that the audiotapes at issue “have no actual relevance to that impeachment inquiry,” the DOJ added, recounting the scope of Republicans’ impeachment resolution memorandum, which didn’t mention “retention of classified information”:

The Committee’s demand for audio recordings seeks records that plainly fall outside the topics outlined in that memorandum. That memorandum identifies four areas of focus: (1) whether President Biden took “any official action … because of money or other things of value provided to his family or him from foreign interests;” (2) whether President Biden “abuse[d] his office of public trust by providing foreign interests with access to him and his office in exchange for payments to his family or him”; (3) whether President Biden “abuse[d] his office of public trust by knowingly participating in a scheme to enrich himself or his family by giving foreign interests the impression that they would receive access to him and his office in exchange for payments to his family or him”; and, (4) whether President Biden “impede[d], obstruct[ed], or otherwise hinder[ed] investigations (including Congressional investigation) or the prosecution of Hunter Biden.” The audio recordings that the Committee seeks are not facially relevant to any of those areas of inquiry, as Special Counsel Hur was investigating President Biden’s “possible unauthorized removal and retention of classified documents.”

Read the DOJ memo here .

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