Biden asserts executive privilege over recording of interview with special counsel demanded by House Republicans

Washington — President Biden asserted executive privilege over audio recordings from an investigation into his handling of classified documents, a top Justice Department official revealed in a letter to House committee leaders obtained by CBS News. 

The assertion came at the recommendation of the Justice Department, as the House Judiciary and Oversight Committees were slated to move forward with markups of a contempt of Congress resolution against Attorney General Merrick Garland on Thursday for defying their request for audio recordings from an October 2023 interview with special counsel Robert Hur that came as part of the classified documents case against Mr. Biden.

"While our cooperation with Congress has been extraordinary, we also have a responsibility to safeguard the confidentiality of law enforcement files where disclosure would jeopardize future investigations," Assistant Attorney General Carlos Uriarte wrote Thursday, "The Attorney General must draw a line that safeguards the Department from improper political influence and protects our principles, our law enforcement work, and the people who carry out that work independently." 

The Justice Department contends that it "made substantial efforts" to respond to the congressional committees' requests for information and materials following Hur's investigation into the president's past handling of classified records, adding they had already handed over the transcripts of the two interviews of which the audio recordings are now at issue. 

"The Committees have still not identified a remaining need for these audio files," Uriarte argued. 

CBS News and other outlets have sued for access to the recordings. 

The response and upcoming vote could launch the two branches into an election-year legal fight over the tapes, one in which the White House and Justice Department would be forced to justify handing over the transcripts to Congress and drawing a line on the audio recordings of the president. 

"We have gone to extraordinary lengths to ensure that the committees get responses to their legitimate requests," Garland said in brief remarks to reporters Thursday morning. "But this is not one."

The legal basis for the president's assertion of executive privilege, according to another letter obtained by CBS News from the attorney general to Mr. Biden, came from the Justice Department's Office of Legal Counsel and Garland himself made the recommendation to the president. 

"The Committees' needs are plainly insufficient to outweigh the deleterious effects that production of the recordings would have on the integrity and effectiveness of similar law enforcement investigations in the future," Garland wrote in a letter to the president dated May 15. "I therefore respectfully request that you assert executive privilege over the subpoenaed recordings. I also request that you make a protective assertion of executive privilege with respect to any other materials responsive to the subpoenas that have not already been produced." 

The attorney general wrote that he feared turning over the tapes might risk chilling the cooperation of witnesses, including White House officials, in any future investigations. He said that risk outweighs the committee's request.

The White House Counsel's Office also responded to the upcoming contempt votes, writing to House Judiciary Chairman Jim Jordan and House Oversight Committee Chairman James Comer Thursday morning, alleging they would likely "chop up" and "distort" the recordings "for partisan political purposes" should they obtain them. 

"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," Edward Siskel wrote Thursday. 

The move to assert executive privilege, which grants the executive branch the ability to withhold certain communications from the courts or Congress under the separation of powers doctrine, is expected to shield Garland from criminal proceedings. Garland noted in a letter that the Justice Department has a history of recognizing that executive privilege protects materials related to "closed criminal investigation where disclosure is likely to damage future law enforcement efforts."

The committee leaders have pressed forward, arguing that they require the recordings as part of their investigation into the president's handling of classified documents, while asserting that the White House has already waived privilege by releasing the transcripts. Oversight Committee Chairman James Comer claimed in a statement that the White House fears releasing the audio recordings because it would "reaffirm to the American people that President Biden's mental state is in decline."

"Today's Hail Mary from the White House changes nothing for our committee," Comer, a Kentucky Republican, said in a statement. "The House Oversight Committee will move forward with its markup of a resolution and report recommending to the House of Representatives that Attorney General Garland be held in contempt of Congress for defying a lawful subpoena."

In:
• Joe Biden
• United States Department of Justice
• Republican Party
• Merrick Garland
• U.S. House of Representatives

Robert Legare

Robert Legare is a CBS News multiplatform reporter and producer covering the Justice Department, federal courts and investigations. He was previously an associate producer for the "CBS Evening News with Norah O'Donnell."