The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Why did President Biden invoke executive privilege over the recording of his special counter interview, but not the transcript?
"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."
Special Counsel Robert Hur described President Biden as a "well-meaning, elderly man with a poor memory." The White House did not invoke executive privilege to block the release of the transcript of Hur's interview with Biden. The House Oversight and Judiciary Committees requested the audio recording of Hur's interview. Now the White House has invoked executive privilege to block the release of the audio.
White House Counsel Ed Siskel gave the House's request two-thumbs down:
The President has a duty to safeguard the integrity and independence of Executive Branch law enforcement functions and protect them from undue partisan interference that could weaken those functions in the future. As you know, 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.
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.
Siskel's letter, as well as another letter by Attorney General Garland, dances around a key issue: given that the transcript has already been released, what is the risk of releasing the audio?
Consider the difference between reading the transcript of a Supreme Court proceeding and listening to the oral argument audio. For years, the Supreme Court resisted live-streaming oral argument, or even a same-day release. Why? Several justices acknowledged they were worried that audio from the proceeding could be spliced up and used for political purposes. Fast-forward to the present day, and all of the cases are live-streamed. As far as I can tell, the fears about chopping up audio have not materialized.
Back to President Biden. The White House is clearly worried that the audio may make him sound like a "well-meaning, elderly man with a poor memory." And that audio will be mercilessly used by the Trump campaign. It is possible that future witnesses may hesitate to voluntarily participate in high-profile investigations if both the transcripts and audio are released. But in the present moment, the protection of President Biden is paramount.
I see politics on both sides. The Republicans don't actually need the audio to learn more about the investigation. They want to embarrass Biden. And the White House has no real justification to withhold the audio, other than to protect Biden from embarrassment. Once again, politics and presidential power overlap. There is nothing new under the sun.
