Both President Joe Biden and former president Donald Trump have faced down investigations for the misuse of classified documents. Monday, in a startling ruling, the case against Trump was dismissed on technical grounds. In February, Biden got what should have been the good news that the special counsel investigating him, Robert Hur, recommended against charges being brought.
But now Biden’s Department of Justice is strenuously trying to prevent the public from actually hearing Hur’s five and a half hours of interviews with the president.
The reason goes to the heart of the crisis facing Biden’s campaign for a second term: Is he, at 81 years old, fit to hold office? While Hur’s report concluded that Biden “willfully” retained classified material from his time as vice president, it also concluded that a prosecution would be unsuccessful. One reason, the report found, was that “Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”
For his candor, Hur was excoriated by many of the president’s supporters as well as members of the media and political pundits. Then Biden’s disastrous June 27 debate performance, and subsequent appearances, have cast new attention on Hur’s conclusions. Republicans in Congress have subpoenaed, so far unsuccessfully, the audiotapes from Attorney General Merrick Garland.
At the urging of the Justice Department, the president in May declared executive privilege over the interviews conducted by Hur on October 8 and 9, 2023. But such privilege has historically been used to protect confidential conversations between a president and his advisers. In response, the House of Representatives on June 12 passed a resolution holding Garland in contempt of Congress. Two days later, the Justice Department said Garland would not be prosecuted.
This struggle at first appears to be another partisan spat. After all, a transcript of the interview has already been released. Why do the audiotapes matter when we have the transcript?
There are many reasons. One is that before the transcript of the Hur interview of Biden was released, the White House acknowledged editing out “filler” words like um and some repeated words, but assured that nothing material was changed. Yet, when transcripts are created and edited by humans (and even by AI), words must be properly heard and reported. The public can’t be certain the transcript is accurate without having the audio to compare it to.
I have read the full transcript. The printed exchanges show many instances where there is reason to believe that the president may have wandered significantly off topic—these digressions could be innocent or could be concerning. Finally, long pauses—which may indicate processing or other issues—usually aren’t reflected in a transcript.
For all these reasons, many Americans—including myself—want to hear and compare the audio exchanges against the written transcript.
I believe we are facing a Constitutional-level crisis over access to the tapes. In this matter the attorney general is risking crossing the line into acting as the president’s personal attorney and advocate, rather than executing his proper role as the legal representative of the American people.
Why would the attorney general want to deny the American people the opportunity to hear the most accurate evidence? Why would anyone being interviewed as part of a Justice Department investigation not want the protection of having his words recorded and available as he uttered them?
Justice is going to great lengths to keep the recordings under wraps. The department submitted a declaration to court with a novel defense that if these tapes are released, they could be transformed by those with malicious intent to “create an audio deepfake in which a fake voice of President Biden can be programmed to say anything that the creator of the deepfake wishes.”
Then, in raising the protection of “executive privilege,” Garland made the bizarre argument that if members of the executive branch knew their recordings might be released, this would “chill” voluntary cooperation by such employees in future investigations.
As a former criminal defense attorney, I am chilled reading this argument. For decades, those of us who have fought for a fair justice system—including many left-leaning criminal justice advocates—have argued for recording every law enforcement interview and interaction, with audiotape at a minimum and videotape where possible. That effort is why police officers now wear bodycams. It is why the FBI has been under pressure to record all of its interviews instead of using sometimes unreliable notes taken by agents.
Audiotapes provide transparency. This is why attorneys on both sides play audio and video in a court of law.
Turning over the audio recordings could address many of the questions about the president’s mental acuity. If the edits to the written transcript contain very minor changes, the Republicans may look silly for so aggressively seeking the audiotapes and I may look silly for being suspicious of the attorney general for withholding them.
If the audiotapes raise additional concerns, we have another problem on our hands: Why has the attorney general of the United States, who is supposed to work for the American people, hiding the full condition of the president by withholding the tapes? Garland also needs to answer how often he has met with the president during the last twelve months, and what he has observed. And finally, leaders on both sides of the political aisle need to ask how might this effort to use executive privilege to conceal facts set a dangerous precedent for the future?
Ironically, this summer marks the fiftieth anniversary of President Richard Nixon’s resignation from office, which in part came about over the White House concealment of. . . audiotapes.
A longtime criminal defense attorney, Greta Van Susteren is a journalist and news anchor who is the host of The Record on Newsmax TV, and was previously at CNN, Fox News, MSNBC, and VOA.
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