The Secret Biden Tape That We Shouldn’t Hear
The hottest track of the summer is the unreleased recording of special counsel Robert Hur’s interview of the president, writes Elie Honig.
The Secret Biden Tape the Public Shouldn't Hear
Forget about Kendrick Lamar and Sabrina Carpenter—the most sought-after recording of the summer is the secret (so far) tape of Justice Department special counsel Robert Hur's interview with President Joe Biden. Everyone, it seems, is eager to hear it: major media outlets, almost every Republican official on the planet, and many moderates and other politically interested observers. The tape's release could provide valuable support for their cause for Democrats who continue to call for Biden to drop out of the race (with increasing intensity in the past few days).
Although I am eager to hear the elusive recording, Attorney General Merrick Garland has refused to make it public, and he is absolutely right to take this unpopular stand. To paraphrase the Rolling Stones, as interpreted by the Justice Department: "You can't always get what you want, and we don't give a damn what you need." (Not quite as poetic as the original.)
A quick recap: In February, Hur released a bombshell report detailing his year-long investigation into Biden's possession of classified documents. The special counsel concluded that Biden had kept classified materials in his private home and office after leaving the vice presidency and that he was aware of it, but the evidence did not warrant or necessitate criminal prosecution. Notably, Hur remarked that "at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory."
Naturally, Hur's October 2023 interview with Biden became an object of fascination for Republicans determined to prove that Biden has lost a step or five. The recent frenzy surrounding Biden's mental acuity, sparked by his debate debacle, has only intensified the demand for the Justice Department to release the tape. If he does sound like an "elderly man with a poor memory," the audio from the interview would fuel an already raging political fire. Republican House Speaker Mike Johnson made no secret of his motivation: "We all know why they don't want to turn over the audio: because it will… show exactly what we all saw on the debate stage a couple of weeks ago. That is something they want to cover up."
Indeed, within days of the report's release, two Republican-led House committees subpoenaed the Justice Department for audio of the Biden interview. However, Garland refused, citing executive privilege—the right outcome, but for a bizarre and legally incorrect reason. Executive privilege has nothing to do with this situation. The privilege covers communications between a president and their advisers, enabling public officials to deliberate candidly and confidentially. For example, if a president and their secretary of state discuss a diplomatic issue, that is subject to executive privilege. But a president, as the subject of a criminal investigation, answering questions from a prosecutor? There is nothing privileged, executive or otherwise, about that.
Garland provided a better and more compelling reason for his refusal during congressional testimony: "There have been a series of unprecedented and frankly unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files, is just the most recent." This was a surprisingly combative response from the usually bland Garland. Essentially, he told House Republicans to back off.
Indeed, the Justice Department has historically refused to disclose non-public information from its criminal investigations to Congress or other outsiders. Imagine the precedent if prosecutors complied with the congressional subpoena in this case. What would stop any interested outsider from rummaging through the Justice Department's files to dig up dirt on a political opponent, including in cases that did not result in criminal charges? Wouldn't subjects and witnesses be hesitant to speak candidly if they knew their voices could one day be broadcast to the world? More broadly, for the Justice Department to hand over the tapes would compromise its investigative function and undermine the rights of the subject—especially an uncharged subject like Biden. Prosecutors need to conduct some activities outside of public view to protect the case and the participants.
Nonetheless, in March 2024, the Justice Department agreed to an unusual compromise: releasing a verbatim transcript of the Hur-Biden interview, which provided valuable insight. On the one hand, the transcript does not suggest that Biden has lost his mind; some of his answers are rambling or non-responsive, but the written words do not convey that he is incapacitated or legally incompetent. On the other hand, the transcript also exposed astonishing dishonesty by the president. After the report's release, Biden angrily denied that Hur had asked about his son Beau's death: "How in the hell dare he raise that?" It turns out that Biden himself, not Hur, brought up Beau's death to provide context for a particular event. So, the transcript has its merits.
But, as a former prosecutor, let me assure you: if you want to make an impact on a jury—or any audience—nothing beats the audio. Hearing words spoken aloud is far more powerful and memorable than reading them on a page, especially when assessing the interviewee's acuity. Republicans in Congress clearly understand this, and the transcript only fueled their desire to obtain the Hur-Biden audio. Garland drew a line: you can have the transcript, but not the tape.
Unsurprisingly, House Republicans did not graciously accept the attorney general's compromise position. Instead, they held Garland in contempt, setting the stage for a potential criminal prosecution by the United States Justice Department. It took just two days for the Justice Department to formally decline to indict its own agency head for upholding the agency's formal legal position. (I wonder what that internal deliberation sounded like; I imagine peals of laughter echoing through DOJ headquarters.)
A brief historical note: somehow, we managed to go over 220 years as a nation without Congress holding any attorney general in contempt. But in 2012, the Republican-controlled House (with some Democratic support) held Attorney General Eric Holder in contempt for refusing to provide documents related to the "Fast and Furious" firearms sting operation scandal. Then, in 2019, the Democratic-controlled House held Attorney General Bill Barr in contempt after he declined to provide documents related to the administration's effort to add a citizenship question to the census. Neither Holder nor Barr was prosecuted, of course, as discussed above. The Justice Department typically does not indict its top prosecutor. Now, Garland joins their ranks, and we have a three-administration streak of attorney general contempt citations.
Congressional Republicans eventually attempted to take extreme measures against Garland, invoking a variation of an obscure, century-old practice where Congress would use its "inherent" enforcement power to send a sergeant-at-arms to arrest and detain contempt-ees in a mysterious jail facility located somewhere in or near the Capitol. Thankfully, present-day congressional Republicans did not try to imprison the sitting attorney general in an abandoned cloakroom. Instead, they tried to fine him $10,000 per day. Predictably, this creative effort failed.
As a last resort, House Republicans have now sued Garland in federal court for the tape. Their chances are slim, although it is not entirely impossible for them to succeed. It is easy to criticize Garland, and I have done so throughout his tenure. As a member of the media (and the voting public), I am tempted to condemn Garland for his decision to withhold the Hur-Biden audio recording. But as a former prosecutor, I applaud him. We probably will never hear the tape, and that is for the best.
Forget about Kendrick Lamar and Sabrina Carpenter—the most sought-after recording of the summer is the secret (so far) tape of Justice Department special counsel Robert Hur's interview with President Joe Biden. Everyone, it seems, is eager to hear it: major media outlets, almost every Republican official on the planet, and many moderates and other politically interested observers. The tape's release could provide valuable support for their cause for Democrats who continue to call for Biden to drop out of the race (with increasing intensity in the past few days).
Although I am eager to hear the elusive recording, Attorney General Merrick Garland has refused to make it public, and he is absolutely right to take this unpopular stand. To paraphrase the Rolling Stones, as interpreted by the Justice Department: "You can't always get what you want, and we don't give a damn what you need." (Not quite as poetic as the original.)
A quick recap: In February, Hur released a bombshell report detailing his year-long investigation into Biden's possession of classified documents. The special counsel concluded that Biden had kept classified materials in his private home and office after leaving the vice presidency and that he was aware of it, but the evidence did not warrant or necessitate criminal prosecution. Notably, Hur remarked that "at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory."
Naturally, Hur's October 2023 interview with Biden became an object of fascination for Republicans determined to prove that Biden has lost a step or five. The recent frenzy surrounding Biden's mental acuity, sparked by his debate debacle, has only intensified the demand for the Justice Department to release the tape. If he does sound like an "elderly man with a poor memory," the audio from the interview would fuel an already raging political fire. Republican House Speaker Mike Johnson made no secret of his motivation: "We all know why they don't want to turn over the audio: because it will… show exactly what we all saw on the debate stage a couple of weeks ago. That is something they want to cover up."
Indeed, within days of the report's release, two Republican-led House committees subpoenaed the Justice Department for audio of the Biden interview. However, Garland refused, citing executive privilege—the right outcome, but for a bizarre and legally incorrect reason. Executive privilege has nothing to do with this situation. The privilege covers communications between a president and their advisers, enabling public officials to deliberate candidly and confidentially. For example, if a president and their secretary of state discuss a diplomatic issue, that is subject to executive privilege. But a president, as the subject of a criminal investigation, answering questions from a prosecutor? There is nothing privileged, executive or otherwise, about that.
Garland provided a better and more compelling reason for his refusal during congressional testimony: "There have been a series of unprecedented and frankly unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files, is just the most recent." This was a surprisingly combative response from the usually bland Garland. Essentially, he told House Republicans to back off.
Indeed, the Justice Department has historically refused to disclose non-public information from its criminal investigations to Congress or other outsiders. Imagine the precedent if prosecutors complied with the congressional subpoena in this case. What would stop any interested outsider from rummaging through the Justice Department's files to dig up dirt on a political opponent, including in cases that did not result in criminal charges? Wouldn't subjects and witnesses be hesitant to speak candidly if they knew their voices could one day be broadcast to the world? More broadly, for the Justice Department to hand over the tapes would compromise its investigative function and undermine the rights of the subject—especially an uncharged subject like Biden. Prosecutors need to conduct some activities outside of public view to protect the case and the participants.
Nonetheless, in March 2024, the Justice Department agreed to an unusual compromise: releasing a verbatim transcript of the Hur-Biden interview, which provided valuable insight. On the one hand, the transcript does not suggest that Biden has lost his mind; some of his answers are rambling or non-responsive, but the written words do not convey that he is incapacitated or legally incompetent. On the other hand, the transcript also exposed astonishing dishonesty by the president. After the report's release, Biden angrily denied that Hur had asked about his son Beau's death: "How in the hell dare he raise that?" It turns out that Biden himself, not Hur, brought up Beau's death to provide context for a particular event. So, the transcript has its merits.
But, as a former prosecutor, let me assure you: if you want to make an impact on a jury—or any audience—nothing beats the audio. Hearing words spoken aloud is far more powerful and memorable than reading them on a page, especially when assessing the interviewee's acuity. Republicans in Congress clearly understand this, and the transcript only fueled their desire to obtain the Hur-Biden audio. Garland drew a line: you can have the transcript, but not the tape.
Unsurprisingly, House Republicans did not graciously accept the attorney general's compromise position. Instead, they held Garland in contempt, setting the stage for a potential criminal prosecution by the United States Justice Department. It took just two days for the Justice Department to formally decline to indict its own agency head for upholding the agency's formal legal position. (I wonder what that internal deliberation sounded like; I imagine peals of laughter echoing through DOJ headquarters.)
A brief historical note: somehow, we managed to go over 220 years as a nation without Congress holding any attorney general in contempt. But in 2012, the Republican-controlled House (with some Democratic support) held Attorney General Eric Holder in contempt for refusing to provide documents related to the "Fast and Furious" firearms sting operation scandal. Then, in 2019, the Democratic-controlled House held Attorney General Bill Barr in contempt after he declined to provide documents related to the administration's effort to add a citizenship question to the census. Neither Holder nor Barr was prosecuted, of course, as discussed above. The Justice Department typically does not indict its top prosecutor. Now, Garland joins their ranks, and we have a three-administration streak of attorney general contempt citations.
Congressional Republicans eventually attempted to take extreme measures against Garland, invoking a variation of an obscure, century-old practice where Congress would use its "inherent" enforcement power to send a sergeant-at-arms to arrest and detain contempt-ees in a mysterious jail facility located somewhere in or near the Capitol. Thankfully, present-day congressional Republicans did not try to imprison the sitting attorney general in an abandoned cloakroom. Instead, they tried to fine him $10,000 per day. Predictably, this creative effort failed.
As a last resort, House Republicans have now sued Garland in federal court for the tape. Their chances are slim, although it is not entirely impossible for them to succeed. It is easy to criticize Garland, and I have done so throughout his tenure. As a member of the media (and the voting public), I am tempted to condemn Garland for his decision to withhold the Hur-Biden audio recording. But as a former prosecutor, I applaud him. We probably will never hear the tape, and that is for the best.