President Joe Biden meets with President-elect Donald Trump in the Oval Office of the White House, Wednesday, Nov. 13, 2024, in Washington. (AP Photo/Evan Vucci).
Former President Joe Biden faces a crucial deadline Tuesday to try to stop the Trump administration from handing over to Congress previously "deleted" but recovered audiotapes of conversations he had with his memoir's ghostwriter in 2017.
Whenever administrations change, DOJ shifts in priorities and positions inevitably follow. One clear consequence of Biden's lone term as president and of former VP Kamala Harris' 2024 election loss to President Donald Trump is that the current DOJ is no longer using fears of "deepfakes" as an argument against disclosure. Rather, the Trump administration is in a position to provide Republicans in Congress and conservative groups alike with material against the opposition.
A status update in a Freedom of Information Act (FOIA) lawsuit brought by the conservative Heritage Foundation in March 2024 made waves on Friday. Both the plaintiff organization and the defendant DOJ told U.S. District Judge Dabney Friedrich in Washington, D.C., that Biden had until Tuesday — or else "written transcript and audio recordings at issue in this matter, with redactions," will be handed to Congress, "pursuant to a request from the Chair of the House Judiciary Committee, as well as to Plaintiffs."
Some "70 hours of audio recordings" of Biden speaking with Mark Zwonitzer regarding "Promise Me, Dad," were deleted but recovered as part of special counsel Robert Hur's investigation into Biden's retention of classified documents about U.S. "military and foreign policy in Afghanistan."
When Hur released his report on the classified documents investigation, the special counsel said there was evidence Biden "willfully retained and disclosed classified materials" after his vice presidency. But aside from the issue that DOJ policy ruled out charging a sitting president, Hur additionally concluded a jury wouldn't convict Biden, a "sympathetic, well-meaning, elderly man with a poor memory" — indeed, a "worse" memory than he showed in the Zwonitzer tapes.
Hur's report characterized the ghostwriter sessions as "often painfully slow," with the former vice president "struggling to remember events" and "straining at times to read and relay his own notebook entries" several years before he was elected president.
While the complaint in the Heritage Foundation's case said from the start that the public has an interest in learning more about Biden's "mental faculties and memory," it took a change in DOJ leadership for the finish line to come into view.
"President Biden, through counsel, has advised the Department that he intends to seek to intervene to prevent any such disclosures. The Department does not oppose intervention. If President Biden does not seek to intervene on or before May 12, the Department will disclose the material shortly thereafter," the status report explained. "Otherwise, the Department will disclose the material on June 15."
As Law&Crime previously reported, the Biden administration DOJ had repeatedly rebuffed the initial wave of demands from media organizations and conservative groups for tapes of the then-president's five-hour interview with Hur.
As parties sought to learn more in the "public interest" ahead of the election, the Biden administration argued "malicious" actors would create "deepfakes" of the president saying things he did not say.
The prior administration also argued that releasing audiotapes would inappropriately "second-guess" Hur's non-charging recommendation and "threaten critical law enforcement interests by chilling the potential cooperation of witnesses in current and future sensitive investigations."
Months later, and on the heels of a much-maligned June 2024 debate performance, Biden announced he would not run for reelection.
To hear the plaintiff Heritage Foundation tell it, nothing should really stand in the way of the public being able to "hear the tapes and read the transcripts as redacted by President Donald J. Trump's Department of Justice."
Claiming that Biden's strategy "smacks of kicking the can down the road" in the name of delay, the Heritage Foundation argued that it would be "unfair to Plaintiffs and the Department" and "massively unfair to this Court, which is being presented with an emergency procedural morass," to allow Biden's belated intervention.
Notably, Jeffrey Clark entered the case on behalf of the plaintiffs on the same day the status report was filed.
At least one Biden spokesperson has reportedly reacted to the latest events by pointing out that the DOJ has moved to bury Jack Smith's report on the Mar-a-Lago classified documents probe of Trump.