Joe Biden asserted executive privilege to stop House Republicans obtaining recordings of his interviews with Robert Hur, the special counsel who investigated Biden’s retention of classified information after his time as a senator and as vice-president to Barack Obama.
In a letter reported by the New York Times and other outlets on Thursday, the White House counsel, Edward Siskel, told the Republican chairs of the House judiciary and oversight committees: “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.”
The two chairs, Jim Jordan of Ohio (judiciary) and James Comer of Kentucky (oversight), both close allies of Donald Trump, have led Republican efforts to ensnare Biden in damaging investigations including a sputtering impeachment.
Biden’s retention of classified information was discovered as Trump, Biden’s opponent in this year’s election, came to face 40 criminal charges on the same issue.
Unlike Trump – who faces 48 other criminal charges and has been hit with multimillion-dollar civil penalties – Biden cooperated with the special counsel appointed to investigate the matter.
Hur, who was appointed as a US attorney by Trump, cleared Biden of wrongdoing. But Hur caused uproar when in his report he made repeated reference to the 81-year-old president’s age, including saying if he had brought charges, jurors would have seen Biden as “a sympathetic, well-meaning, elderly man with a poor memory”.
Hur has defended his work. Republicans have clamoured for access to recordings of Hur’s interviews with Biden, particularly after Biden’s own angry claims about what was said were contradicted by transcripts.
News organisations have sued to obtain the recordings.
In Congress, Republicans threatened to hold the US attorney general, Merrick Garland, in contempt after he rejected subpoenas for the recordings and other materials.
In a letter to Biden, reported by the Times, Garland said handing over Hur’s interviews “would raise an unacceptable risk” of undermining “similar high-profile criminal investigations – in particular, investigations where the voluntary cooperation of White House officials is exceedingly important”.
The Department of Justice said the decision to withhold the interviews was not made for partisan reasons.
Carlos Uriarte, assistant attorney general for legislative affairs, told Jordan and Comer: “It is the longstanding position of the executive branch 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.”
In response, House Republicans cited comments in February in which a Biden spokesperson said the president had “nothing to hide”, and asked: “Why is Biden hiding behind executive privilege now?”
Comer said: “It’s a five-alarm fire at the White House … Today’s Hail Mary from the White House changes nothing for our committee.”
Jordan told reporters transcripts already handed over were not “sufficient evidence of the state of the president’s memory” and said: “This last-minute invocation does not change the fact that the attorney general has not complied with our subpoena.”
Jordan’s House judiciary committee later voted to advance contempt proceedings against Garland. The oversight committee was due to take up the issue.
Trump’s campaign spokesperson, Steven Cheung, said Biden “and his feeble administration have irretrievably politicised the key constitutional tenet of executive privilege, denying it to their political opponents while aggressively trying to use it to run political cover for Crooked Joe”.
But Glenn Ivey, a Maryland Democrat who sits on the House judiciary committee, told the Times Republicans’ demands were “purely political”.
“The only reason they want the recording is to try to use clips for campaign ads, or something along those lines, which obviously doesn’t meet the legislative purpose standard that the supreme court set for congressional oversight.”
