On the counsel of Attorney General Merrick Garland, President Joe Biden asserted executive privilege last month to keep recordings of his troubling interview with special counsel Robert Hurt hidden.

In defense of this secrecy, Biden's counsel and Garland cited a 2008 opinion from former Attorney General Michael B. Mukasey.

Unfortunately for Biden's executive privilege play, Mukasey issued a declaration in the Heritage Foundation Oversight Project lawsuit against the Biden Department of Justice late Friday night, revealing Garland and his associate deputy to have misapplied his Bush-era argument and to be wrong about keeping the tapes from the American people.

Having described the declaration in advance as a "thermonuclear bomb," Mike Howell, executive director of the Oversight Project, wrote Saturday morning, "Boom[.] Merrick Garland's House of Cards just colapsed."

Background

Attorney General Merrick Garland appointed Robert Hur as special counsel in President Joe Biden's classified documents case, tasking him in January 2023 with examining "the possible unauthorized removal and retention of classified documents or other records discovered" at Biden's Delaware residence and Washington, D.C., think tank.

Hur concluded his investigation this past February, recommending no charges against Biden. He did, however, note in his 388-page report that his investigation "uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen."

While that acknowledgment was enough to make headlines, the report's suggestion that Biden was too decrepit proved the more alarming.

The Hur report noted Biden's "limited precision and recall during his interviews with his ghostwriter and with our office" and suggested prospective jurors might be disinclined to convict him of a "serious felony that requires a mental state of willfulness."

The report further noted that the Democratic president — whose mental state is apparently too far gone for him to be able to consciously execute a crime — presented himself in October 2023 interviews with Hur's team "as a sympathetic, well-meaning elderly man with a poor memory."

Elsewhere in the report, it said "Biden's memory ... appeared to have significant limitations — both at the time he spoke to [his ghostwriter] in 2017, as evidence by their recorded conversations, and today, as evidenced by his recorded interview with out office."

While Biden's 2017 interview was reportedly "painfully slow" and dragged down by Biden's inability to remember events or even read his own notebook entries, his interview with the special counsel's office was far worse.

"He did not remember when he was vice president" or "when his son Beau died," said the report.

The tapes

Upon learning about the recordings, multiple House GOP chairmen requested on Feb. 12 that Attorney General Merrick Garland turn over the Biden-Hur interview tapes and other materials. Garland failed to do so, prompting the chairmen to respond with subpoenas, which Marland defied, resulting ultimately in a congressional vote to hold him in contempt.

Prior to the vote, Garland told Biden in a May 15 letter to "assert executive privilege over the subpoenaed recordings," stressing such an assertion could only be overcome if congressional investigators establish that they have a "sufficient need for the subpoenaed materials."

Sure enough, the White House took Garland's advice, keeping the tapes hidden.

Edward Siskel, counsel to the president, told House Republicans in a May 16 letter, "The Attorney General has warned that the disclosure of materials like these audio recordings risks harming future law enforcement investigations by making it less likely that witnesses in high-profile investigations will voluntarily cooperate. In fact, even a past President and Attorney General from your own party recognized the need to protect this type of law enforcement material from disclosure."

Just as Garland had in his defense of Biden's assertion of executive privilege, Siskel too specifically cited a 2008 opinion from former Attorney General Michael B. Mukasey, titled, "Assertion of Executive Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White House Staff."

In a May 31 court filing, Associate Deputy Attorney General Bradley Weinsheimer put additional emphasis on Garland's use of this opinion.

'The assertion of executive privilege made here goes well beyond the limits of any prior assertion.'

In the opinion, Mukasey asked President George Bush to assert executive privilege with respect to DOJ documents subpoenaed by a congressional committee, noting "such a production would chill deliverations among future White House officials and impede future Department of Justice criminal investigations involving official White House conduct."

It was unwise to lean too heavily on this opinion.

The Oversight Project sues

The Heritage Foundation's Oversight Project filed a lawsuit in March to compel the release of the Biden-Hur recordings and other pertinent materials.

Mike Howell said in a statement at the outset, "We are suing not only to find out why Special Counsel Hur gave President Biden the kid gloves treatment but also for the records he relied upon to determine that President Biden is too old and senile to face accountability for his egregious mishandling of our nation’s most important secrets."

"The American people deserve to know how the Special Counsel came to his conclusion. That's why we are suing for them to obtain those records and restore transparency to our government," added Howell.

Part of the reason the Oversight Project is keen to hear the tapes is because the White House admitted to doctoring the Biden-Hur interview transcripts to make Biden appear more coherent. The apparent need to clean up the transcript speaks clearly to the Oversight Project's sense that it is in the interest of the American people to have some insight into the "mental fitness of their president."

The Oversight Project's public records lawsuit was ultimately consolidated last month with suits filed by Judicial Watch and CNN. Other outfits have followed suit.

Mukasey pulls the rug from under Biden and Garland

In a declaration dated June 18 and filed overnight Friday, Mukasey noted that Garland had placed "heavy reliance" on his 2008 analysis of the law enforcement component of executive privilege — to a fault.

'The Department has lost sight of the true institutional interests of the presidency and is putting at risk the important traditions and principles on which the doctrine of executive privilege rests.'

While supportive for the president's constitutional responsibility to assert executive privilege "when necessary to protect sensitive information in the possession of the Executive Branch, Mukasey indicated that "the assertion of executive privilege made here goes well beyond the limits of any prior assertion and is not supported by the 2008 Executive Privilege Letter or other precedents relied upon by the Department."

Mukasey indicated there could be considerable fallout from the Biden DOJ and White House's attempt to hide the tapes using executive privilege.

The reasons given for invoking the privilege are entirely unconvincing, and I believe that by pressing this flawed privilege assertion, the Department has lost sight of the true institutional interests of the presidency and is putting at risk the important traditions and principles on which the doctrine of executive privilege rests, and thus the ability of this and future Presidents to invoke that doctrine when necessary and appropriate.

Mukasey highlighted various glaring differences between Biden's case and the circumstances in 2008.

For starters, he noted that the FBI reports and interview notes at issue in 2008 contained "frank and candid deliberations among senior presidential advisers" regarding White House business, including sensitive decisions on Bus's part as well as communications with the president.

The Biden-Hur interview, on the other hand, "did not touch on official White business, let alone the sensitive deliverations of presidential advisers, but only private conduct."

Mukasey made mince meat of the notion that the release of the Biden-Hur document would discourage "voluntary cooperation with future Department criminal investigations involving official white House actions" as would have been the case in 2008, and noted further the Bush-era documents of interest had still all been confidential, whereas a supposedly verbatim transcript of Biden's interview has already been released.

"I believe the public has an overwhelming interest in hearing the audio recording and that that interest in disclosure overwhelms any conceivable intrusion on the President's privacy interests," added Mukasey.

Mukasey echoed the suggestion of some lawmakers, noting that audio recordings provide additional insights that cannot otherwise be gleaned from a "cold transcript about the witness' demeanor, credibility, mental acuity, and other attributes" — insights that evidently played a role in Hur's ultimate determination not to recommend charges.

'This is the very reason for the existence of the Freedom of Information Act in the first place.'

According to the former attorney general, the effort to hide the tapes strongly suggests that the Biden administration believes its release "would prove embarrassing to the President and politically damaging" — which is hardly a justifiable reason to assert executive privilege or shrug off FOIA requests.

After briefly touching on Garland's intimation that the release of the Biden recordings would be akin to releasing the recording of the dying Challenger astronauts, Mukasey kneecapped the Biden attorney general's suggestion that if released, then the Biden-Hur interview recordings could be manipulated, noting there is ample stock of Biden audio to create "deep fakes."

"[Garland's] case crumbled tonight, "the Oversight Project stressed online. "No one is above the law."

"Despite the Government's voluminous briefing, fanciful arguments, and notwoethy attempts to invent new legal authority, this remains a simple case," said the Oversight Projet's brief. "This is the very reason for the existence of the Freedom of Information Act in the first place."

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