White House says Hur tapes are privileged as Congress moves to hold Garland in contempt

President Biden has asserted executive privilege over the audio and video recordings from the special counsel investigation into his handling of classified materials and will refuse congressional requests to hand them over, the White House and the Justice Department said in separate letters to House Republican leaders Thursday.

The letters were sent hours before the GOP-led House Oversight and Judiciary committees were scheduled to advance a contempt resolution against Attorney General Merrick Garland for defying a subpoena that demanded the recordings, which include hours of Special Counsel Robert K. Hur interviewing Biden.

The Justice Department also sent House Republicans a letter Garland wrote to Biden on Wednesday requesting that he assert executive privilege because releasing the tapes would “damage future law enforcement efforts,” particularly as investigators request voluntary cooperation in their probes from White House officials.

The White House letter to the House Republicans echoes those concerns and accuses Republicans of wanted to “distort” the recordings for political gain.

“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,” the letter from Edward N. Siskel, counsel to the president, read. “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.”

Garland appointed Hur in January 2023 to investigate the handling of classified documents found at a former Biden office and his Delaware home. Hur, who interviewed Biden in October, concluded in his final report that there was not enough proof to charge the president with crimes. But in the same 345-page document, he wrote that his decision was in part influenced by the fact that if Biden was prosecuted, it would be “difficult to convince a jury that they should convict him — by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”

Republicans have seized on Hur’s description of Biden as “a well-meaning, elderly man with a poor memory” — a characterization that Hur maintained was relevant to his decisions as special counsel during his appearance before Congress in March.

House Republicans’s impeachment inquiry into Biden and his family’s finances has stalled out in recent months, bedeviled by a lack of hard evidence and some members’ doubts about the viability — and political effectiveness — of the effort. But top Republicans argue that Garland is to blame for their lack of progress, and has impeded their inquiry by providing only transcripts, rather than audio and video recordings, of the special counsel’s interviews.

In a report released this week by the House Oversight and Accountability Committee, Chairman James Comer (R-Ky.) wrote that the committee needed all documents and communications related to the special counsel’s interview to determine “whether President Biden willfully retained classified information and documents related to, among other places, Ukraine to assist his family’s business dealings or to enrich his family.”

With a threadbare majority, House Republicans need near unanimity to hold Garland in contempt of Congress.

Justice Department officials notified House Republicans last month that they would not provide recordings of Biden’s interviews with then-special counsel Hur about the classified documents found in 2022 and the president’s Wilmington, Del., home and an office he used after his vice presidency.

In a letter to Jim Jordan (R-Ohio), the chairman of the House Judiciary Committee, and Comer, a senior Justice Department official wrote that the request seemed politically motivated — and not “in service of legitimate oversight or investigatory functions” — as Republicans already have transcripts of Biden’s interviews. The department has also argued that publicly releasing the tapes could chill witness cooperation in the future.

Rep. Jamie Raskin (D-Md.), the ranking member on the Oversight Committee, retorted in a statement that Republicans are “trying to blame Attorney General Merrick Garland for their own protracted comedy of errors.”

“The Attorney General gave Republicans the information they asked for, and it’s delightfully absurd to suggest that listening to the President’s words instead of just reading them will suddenly reveal the mystery high crime and misdemeanor the Republicans have been unable to identify since 2023,” he added.

Comer has so far produced no hard evidence that Joe Biden was a direct participant in or beneficiary of his son Hunter Biden’s business dealings. Though some of Hunter Biden’s close associates have placed his father in proximity to people involved with some of his business deals, none of the allegations have proved the GOP’s claims that Hunter Biden’s business activities fueled an influence-peddling operation that enriched the president and his family.

In interviews with right wing media outlets, Comer has indicated that his investigation will come to an end imminently but not without potential criminal referrals. It remains unclear whether lawmakers will formally accuse President Biden of a crime — and what crimes they may allege he committed.

House Republicans have previously attempted to hold other administration figures in contempt.

Last year, Comer led the charge to hold FBI Director Christopher Wray in contempt of Congress for failing to comply with a subpoena demanding he hand over in full an FBI document that contained unsubstantiated allegations about Biden and his family. The Justice Department later charged the ex-FBI informant who made the allegations about Biden and his family with lying to authorities about a multimillion-dollar bribery scheme. The ex-informant has pleaded not guilty.