Biden asserts executive privilege over audio of interview with special counsel Hur

Republicans are still moving ahead with trying to hold AG Garland in contempt.

May 16, 2024, 11:24 PM

The Justice Department on Thursday informed House Republicans that President Joe Biden has formally asserted executive privilege over the audio of his interview with special counsel Robert Hur, who investigated Biden's handling of classified documents.

It's a move that the department said effectively shields Attorney General Merrick Garland from any criminal exposure, though Republican lawmakers moved ahead anyway toward trying to hold him in contempt of Congress.

The GOP-led House Oversight Committee voted 24-20 late Thursday to approve a report recommending a contempt of Congress resolution against Garland for his failure to turn over audio recordings of Special Counsel Robert Hur's interview with Biden.

The Garland contempt resolutions now head to the full House for a vote. It’s not clear when that vote will occur, but Speaker Johnson’s office tells ABC News it won’t be tomorrow/Friday.

Republicans sought access to the audio recording of Hur's interview of Biden as part of their stalled impeachment probe into the president.

The DOJ previously provided a transcript of Biden's interview to House Republicans. The White House, in its reasoning for asserting executive privilege, expressed concern the tapes would be unfairly manipulated by GOP lawmakers.

The special counsel's yearlong probe into Biden's handling of classified documents ended with no criminal charges being recommended because the evidence wasn't sufficient to support a conviction.

However, the 388-page report Hur released created a political firestorm as the special counsel described Biden as someone who could appeal to a jury as an "elderly man with a poor memory" and detailed instances where Hur said Biden couldn't remember when his son died or what years he was vice president. Republicans jumped on the assertions made in the report related to Biden's mental acuity, which the White House forcefully pushed back on.

House Judiciary Chairman Jim Jordan, as his committee met Thursday to markup the contempt report, argued the audio recordings are "necessary” and the transcripts “alone are not sufficient evidence of the state of the president's memory."

"Clearly President Biden and his advisors fear releasing the audio recordings of his interview because it will again reaffirm to the American people that President Biden’s mental state is in decline," House Oversight Chairman James Comer said in a statement obtained by ABC News.

PHOTO: AG Merrick Garland speaks to reporters outside his office, May 16, 2024, in Washington, D.C.
AG Merrick Garland speaks to reporters outside his office, May 16, 2024, in Washington, D.C.
C-SPAN

Garland, in rare public comments Thursday morning speaking to reporters outside his office, accused House Republicans of mounting a series of "unprecedented" and "unfounded" attacks on the DOJ.

"We have gone to extraordinary lengths to ensure that the committees get responses to their legitimate requests, but this is not one," Garland said defending the decision to exert privilege. "To the contrary, this is one that would harm our ability in the future to successfully pursue sensitive investigations."

The attorney general added, "Look, the only thing I can do is continue to do the right thing. I will protect this building and its people."

Hur's yearlong probe into Biden's handling of classified documents ended with no criminal charges being recommended because the evidence wasn't sufficient to support a conviction. However, the 388-page report Hur released created a political firestorm as the special counsel described Biden as someone who could appeal to a jury as an "elderly man with a poor memory."

House Republicans were first informed of the privilege decision in a letter from Assistant Attorney General Carlos Uriarte, who cited what the department called its "extraordinary" cooperation and "good faith" efforts to provide Republicans with all relevant materials from Hur's probe.

Uriarte further detailed in his letter how the department previously made available the transcript of Biden's interview with Hur, and argued Republicans have failed to provide any reason that the audio would add further value to their efforts to investigate Biden.

PHOTO: President Joe Biden speaks during brief remarks in the Roosevelt Room at the White House in Washington,  May 2, 2024.
President Joe Biden speaks during brief remarks in the Roosevelt Room at the White House in Washington, May 2, 2024.
Nathan Howard/Reuters, FILE

In explaining the move to have Biden formally assert executive privilege over the remaining materials sought by Republicans -- which includes the audio of the interview with Biden's ghostwriter Mark Zwonitzer -- Uriarte pointed to longstanding DOJ policy "held by administrations of both parties that an official who asserts the President's claim of executive privilege cannot be prosecuted for criminal contempt of Congress."

"With the information you now have, the Committees ought not to proceed with contempt and should instead avoid unnecessary and unwarranted conflict," Uriarte said.

White House Counsel Ed Siskel also wrote a letter to Jordan and Comer explaining the decision to assert executive privilege over the recordings.

In it, Siskel argued Biden has a responsibility to protect the executive branch's law enforcement agencies from "undue partisan interference."

"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," Siskel wrote.

ABC News' Mary Bruce, Lauren Peller and Will Steakin contributed to this report.

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