Biden asserts executive privilege over recordings from classified documents probe

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The White House asserted executive privilege over audio and video recordings related to Special Counsel Robert Hur's interviews with President Biden.

"I write to inform you that the President has asserted executive privilege over the requested audio recordings and is making a protective assertion of privilege over any remaining materials responsive to the subpoenas that have not already been produced," Associate Attorney General Carlos Uriarte wrote in a letter Thursday to Reps. Jim Jordan and James Comer, chairmen of the Committee on the Judiciary and Committee on Oversight and Accountability, respectively. 

"It is the longstanding position of the executive branch held by administrations of both parties that an official who asserts the President’s claim of executive privilege cannot be prosecuted for criminal contempt of Congress."

Hur led the investigation into Biden's handling of classified documents following his departure as vice president under the Obama administration. Hur announced in February that he would not recommend criminal charges against Biden for possessing classified materials after his vice presidency, citing that Biden is "a sympathetic, well-meaning, elderly man with a poor memory."

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President Joe Biden speaks during a campaign event at the Martin Luther King Recreation Center in Philadelphia, Pennsylvania, US, on Thursday, April 18, 2024. (Hannah Beier/Bloomberg via Getty Images)

"Based on our direct interactions with and observations of him, he is someone from whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness," Hur wrote in his report. 

The findings sparked widespread outrage that Biden was effectively deemed too cognitively impaired to be charged with a crime but could serve as president. Trump has meanwhile slammed the disparity in charges as a reflection of a "sick and corrupt, two-tiered system of justice in our country." 

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Biden met with Hur for about five hours last year, when he was grilled about his handling of the classified documents. 

The executive privilege, according to the letter, also includes interviews between Biden and ghostwriter Mark Zwonitzer. 

The DNC paid lawyers representing President Biden as he was under investigation over his possession of classified documents by Special Counsel Robert Hur.  (Getty Images)

Attorney General Merrick Garland has asked Biden to block the release of the audio recordings. 

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"The audio recordings of your interview and Mr. Zwonitzer's interview fall within the scope of executive privilege. Production of these recordings to the Committees would raise an unacceptable risk of undermining the Department's ability to conduct similar high-profile criminal investigations--in particular, investigations where the voluntary cooperation of White House officials is exceedingly important," Garland wrote to Biden in a letter obtained by Fox News. 

White House Counsel Ed Siskel also wrote to Jordan and Comer Thursday that House Republicans would "chop" up the recordings for "partisan political purposes." 

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This image from Special Council Robert Hur’s investigation released by the Department of Justice on Thursday, February 8, 2024 shows Joe Biden’s box labeled as "International Travel" and containing marked classified documents. (U.S. Department of Justice)

"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," White House Counsel Ed Siskel wrote in a letter to Republican House leaders Thursday morning revealing Biden’s decision. "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."

Comer told Fox News Digital Thursday that there's a "a five-alarm fire at the White House" over the matter. 

"Clearly President Biden and his advisors fear releasing the audio recordings of his interview because it will again reaffirm to the American people that President Biden’s mental state is in decline. The House Oversight Committee requires these recordings as part of our investigation of President Biden’s mishandling of classified documents," Comer said. 

"The White House is asserting executive privilege over the recordings, but it has already waived privilege by releasing the transcript of the interview. Today’s Hail Mary from the White House changes nothing for our committee. 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."

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US Attorney General Merrick Garland speaks during a meeting with US Attorney Damian Williams, not pictured, as well as federal, state, and local law enforcement leaders, in New York City on November 27, 2023. Garland is visiting US Attorney's Offices across the country to discuss the issues in their communities.  (EDUARDO MUNOZ/POOL/AFP via Getty Images)

Trump campaign spokesman Steven Cheung added in comment provided to Fox that the Biden administration has "irretrievably politicized" executive privilege. 

"Crooked Joe Biden and his feeble administration have irretrievably politicized the key constitutional tenet of executive privilege, denying it to their political opponents while aggressively trying to use it to run political cover for Crooked Joe," Cheung said. 

The letters come after The Heritage Foundation's Oversight Project, as well as Judicial Watch and CNN, filed FOIA requests seeking the release of the tapes, and House Republicans unsuccessfully subpoenaed the recordings. 

The DOJ announced in April it would not abide by a subpoena from House Republicans, while maintaining its cooperation with Congress' Biden family investigation has been "extraordinary." 

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Garland was facing potentially being held in contempt of Congress for refusing to turn over the documents. Biden's order, however, protects Garland from being held in contempt, according to the DOJ. 

The House committees on Thursday, however, are still considering a contempt of Congress resolution against Garland. 

"This morning we get an 11th hour invocation of executive privilege," Jordan said Thursday. "President Biden is asserting executive privilege for the same reason we need the audio recordings — they offer a unique perspective."

"This last-minute invocation does not change the fact that the attorney general has not complied with our subpoena," Jordan added. 

Fox News Digital's Charles Creitz contributed to this report.