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Experts Shred Biden’s ‘Executive Privilege’ Claim To Keep Special Counsel Interview Private

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OPINION: This article may contain commentary which reflects the author's opinion.


A number of legal experts are criticizing President Joe Biden’s claim of “executive privilege” in order to keep his interview with Special Counsel Robert Hur out of the hands of the GOP-led House.

On Thursday, the White House announced that President Biden invoked executive privilege over certain audio recordings following a recommendation from Attorney General Merrick Garland. During a press briefing, White House Press Secretary Karine Jean-Pierre explained that Garland advised that “law enforcement files like these need to be protected,” according to Fox News.

“And so the president made his determination at the request of the attorney general,” Jean-Pierre told reporters, referring any further questions to the White House counsel’s office.

But some experts argue that using executive privilege to protect the recordings is “extremely problematic” and “strictly a political decision,” Fox noted further, quoting some of them.

“Executive privilege is designed to respect constitutional separation of powers and to enable a president to engage in candid conversations with his top advisers in order to form judgments and reach decisions,” John Malcolm of the Heritage Foundation and a former federal prosecutor told the outlet.

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“[It] is not designed to hide information that may prove to be embarrassing to a president or some other government official or operation,” Malcolm said, adding that the transcript of the entire interview has already been released.

“Hence, there is no national security or deliberative process reason for not disclosing the recordings of the interview. The only conceivable reason why President Biden would want to prevent the recordings from being disclosed is because he is worried about the public will react to his demeanor and recall when answering Special Counsel Hur’s questions, especially since serious questions have already been raised about his mental acuity and his ability to serve effectively as our president,” he said.

“If he has some other, legitimate reason for withholding that information — and it is hard to fathom what that might be — he needs to say what it is,” Malcolm told Fox.

Hur spearheaded the investigation into Biden’s management of classified documents after his tenure as vice president during the Obama administration. In February, Hur declared that he would not suggest criminal charges against Biden for retaining classified materials post-vice presidency, describing Biden as “a sympathetic, well-meaning, elderly man with a poor memory.”

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Hur noted in the report that he believed “it would be difficult” to convince a jury to convict Biden of any willful crime, citing his advanced age, yet critics of that observation have pointed out that if Biden is supposedly able to stand for reelection, he’s capable enough to stand trial.

House Republicans have pressured Attorney General Garland to disclose the recordings of the interviews, threatening to hold him in contempt of Congress if he fails to do so.

On Thursday, the Department of Justice notified House Republicans, who are investigating Biden, that the executive branch would not release materials subpoenaed from Hur’s investigation, Fox added.

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“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,” Associate Attorney General Carlos Uriarte wrote to Reps. Jim Jordan, R-Ohio, and James Comer, R-Ky., chairmen of the Committee on the Judiciary and Committee on Oversight and Accountability, respectively.

Meanwhile, Garland told reporters on Capitol Hill Thursday: “There have been a series of unprecedented, frankly unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files, is just the most recent effort to threaten, defund our investigations, and the way in which there are contributions to an atmosphere that puts our agents and our prosecutors at risk. These are wrong. Look, the only thing I can do is continue to do the right thing. I will protect this building and its people.”

On Thursday evening, the House Judiciary and Oversight Committees moved forward with a resolution to hold Garland in contempt, despite assertions of presidential privilege. House Speaker Mike Johnson, R-La., will determine whether to present the resolution for a vote on the full House floor, Fox added.

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