As we’ve reported, Joe Biden is now claiming executive privilege over the audio tape of his interview with Special Counsel Robert Hur over the classified documents he had.
What makes this claim unusual, as George Washington Law School professor Jonathan Turley pointed out, was that the transcript of the interview has already been released:
It appears that Joe Biden is “he who must not be heard.”
The invocation of privilege over the audiotape is so transparently political and cynical that it would make Richard Nixon blush.
What makes it worse is that Biden had classified documents all over the place, including documents from his time in the Senate, something he never should have had in his possession:
The comparison to the Trump case in Florida is both obvious and disturbing. Where Trump was charged with a litany of charges, including mishandling and retention of documents (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.
Then on top of that, as Turley notes, Biden told multiple falsehoods about the situation including Biden saying Hur hadn’t found there was “willful retention” of the documents, even though Hur said there was, that he hadn’t shown classified material to a third party, even though Hur has found he had; and that Hur brought up his son Beau when he said Biden couldn’t get the year of his death right, when in fact it was Biden who brought up Beau. Biden flipped out at a press conference saying, “How in the hell dare he [Hur] raise that?” Yet it was Biden who raised it:
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 legitimately withhold these recordings under executive privilege, any president could withhold any evidence of incapacity or criminality.
That’s incredibly important particularly under the situation with Biden, when this is going right to the heart of his incapacity. Plus, even beyond Biden, that’s an important question to resolve.
Turley also noted that Garland knows he’s not going to get prosecuted by his own DOJ for contempt, so he’s making a “cynical calculation” to just blow off Congress on this.
If they already gave up the transcript, it surely sounds like they may have waived any claim of privilege:
A court may be a tad confused as to why a president’s answers are not privileged, but the actual audio recording of those answers can be privileged.
White House Edward Siskel tried to attack the GOP’s request in a letter to the House Oversight and Judiciary Committee Chairs.
“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,” wrote Siskel. But that is not a basis for an executive privilege assertion. How material would be treated is not relevant to whether Congress has a right to the information.
Of course, that’s not the real problem and everyone knows it. The real problem is that when we can see just how bad the interview was in audio form, it will be much more shocking than just the limited transcript, and we might be able to hear just how bad the “inaudibles” were:
Biden is not claiming the actual conversations as privileged; only how he sounded and spoke the words that are already in available transcripts. [….]
Yet privilege is now being asserted for this conversation between Hur and Biden, concerning potentially criminal conduct committed when Biden was a private citizen — neither vice president nor president.
So, there’s yet another problem there with Biden’s argument.
Biden’s legal arguments in this matter have more holes than Swiss cheese. But the problem is that even though Turley notes Biden would probably not prevail legally, he has another out:
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 Washington, the Biden administration hopes 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, who simply did not want to be named, Biden wants to remain “he who must not be heard” outside of short, carefully controlled settings.
So once again, Democrats show they don’t give a darn about the law. It’s always and only about how they can hold onto power.
