The Justice Department told a federal judge late Monday that it has located transcripts it previously denied having of President Joe Biden’s talks with a biographer that played a role in the recently completed criminal investigation into Biden’s handling of classified material before he became president.
In the wake of a report special counsel Robert Hur issued in February that described Biden as “a well-meaning, elderly man with a poor memory,” the Justice Department has been swamped with Freedom of Information Act requests and lawsuits demanding access to various records related to Hur’s probe.
Some of the requests came from news outlets, while others originated with conservative groups apparently seeking to obtain information that could reinforce doubts about Biden’s mental acuity and fitness for the presidency. Nagging concerns about those issues, particularly after a disastrous debate performance against Donald Trump last month, helped drive Biden’s announcement Sunday that he is dropping his bid for reelection.
It’s unclear whether his exit from the race will affect the handling of Hur’s materials by the Justice Department, which has argued that the release of audio of Biden’s interviews with Hur would violate the president’s privacy, lead to potential abuse — such as deepfakes — and deter other witnesses from agreeing to recorded interviews. Biden asserted executive privilege over the audio recordings of his interviews in a bid to head off House Republicans’ effort to hold Attorney General Merrick Garland in contempt of Congress for refusing to release the recordings.
At a hearing last month, DOJ lawyers handling one Freedom of Information case told U.S. District Judge Dabney Friedrich that it would be highly time-consuming to process other audio files containing Biden’s interviews with writer Mark Zwonitzer. The attorneys said those recordings stretched to 70 hours and reviewing audio for potential classified material is far more difficult than written material.
“We don’t have some transcript that’s been created by the special counsel that we can attest to its accuracy,” Justice Department lawyer Cameron Silverberg told Friedrich at the June 18 hearing on a suit brought by the conservative Heritage Foundation.
However, Silverberg said in a court filing Monday night that the department “in the past few days” confirmed that Hur’s office had transcripts made of a portion of Biden’s discussions with Zwonitzer, which occurred as Biden worked with him on memoirs published in 2007 and 2017. Prosecutors determined that some of those conversations contained classified information, although they were barred by Justice Department policy from pursuing charges against a sitting president and said they would not have done so in any event because of the imprecision of Biden’s memory and other factors.
“In the past few days…the Department located six electronic files, consisting of a total of 117 pages, that appeared to be verbatim transcripts of a small subset of the Biden-Zwonitzer audio recordings created for the SCO by a court-reporting service,” Silverberg wrote in the new filing.
In its efforts to wade through the records being demanded by conservative groups and news organizations, the Justice Department also reversed itself on another matter, the new filing reveals.
DOJ officials had resisted requests from Heritage to contact Hur and find out what materials he relied upon for key portions of his report, but amidst the confusion over the transcripts, it reached out to another unnamed person involved in Hur’s probe, according to the filing.
When that person was unavailable, the Justice Department relented and contacted Hur directly, the new submission says.
In a conversation with the former special counsel, Hur acknowledged relying on the Biden-Zwonitzer audio — as well as a portion of Biden’s handwritten notes pertaining to a memo about Afghanistan — to compile his report. Silverberg said he would confer with the parties seeking access to Hur’s materials about whether they would like Biden’s notes processed for potential release as well.
Friedrich has set a hearing in the case for Tuesday morning.
