Biden's Voldemortian theory of privilege: The president whose voice must not be heard

While all eyes were focused on a Manhattan courthouse for Donald Trump's trial, a curious thing happened in Washington. President Joe Biden invoked executive privilege in defiance of Congress.

It is not the invocation that is particularly unusual. What is curious is that Biden is withholding the audiotape of his own interrogation by Special Counsel Robert Hur, even though the transcript has been released as unprivileged.

It appears that Joe Biden is "he who must not be heard." 

The invocation of privilege over the audiotape is so transparently political and cynical that it would make Richard Nixon blush. Multiple committees are investigating Biden for possible impeachment and conducting oversight on the handling of the investigation into his retention and mishandling of classified material over decades. Classified documents were found in various locations where Biden lived or worked, including his garage. The mishandling of classified material is uncontestable. Broken boxes, unprotected areas and lack of tracking are all obvious from the photos.

The comparison to the Trump case in Florida is both obvious and disturbing. Where Trump was charged with a litany of charges, including mishandling and retention of documents (in addition to obstruction), Hur decided not to charge Biden at all. His reason was outright alarming: The president is an elderly man with failing memory.

Biden made the situation even worse with a disastrous press conference in which he attacked Hur and misrepresented his findings. Biden told the public that the special counsel did not find willful retention of material. This was untrue — Hur not only found that Biden had done this, but repeatedly detailed such violations in the report.

Biden also claimed that he had not shown classified material to third parties, even though Hur specifically found that he had and established that there is a witness to that violation. 

Biden also attacked Hur for bringing up the death of Beau, his son who passed away in 2018. In showing why Biden could use his diminished faculties as a defense, Hur had noted that Biden got the date wrong of his own son's death.

In the press conference, Biden angrily asked “How in the hell dare he raise that?” Frankly, when I was asked the question, I thought to myself it wasn’t any of their damn business.”

It was later shown that it was not Hur but Biden himself who raised his son's death, which he often does in speeches. 

Hur's view that Biden's diminished cognitive abilities would undermine any prosecution left many dumbfounded. After all, the man who is too feeble to prosecute is not only running a superpower with a massive nuclear arsenal but running for reelection to add four more years in office.

From impeachment to oversight to the 25th Amendment (allowing the removal of a president for incapacities), there are ample reasons for Congress to demand information and evidence from the government on these questions. Congress is also interested in looking at repeated omissions for "inaudible" statements. Under this sweeping theory that Biden can legitimately withhold these recordings under executive privilege, any president could withhold any evidence of incapacity or criminality.

The House is poised to find Attorney General Merrick Garland in contempt for refusing to release the audiotapes. It is a cynical calculation. Garland knows that his own department will never prosecute him for contempt of Congress. Obama Attorney General Eric Holder was clearly in contempt of Congress and abused executive privilege arguments to shield embarrassing details tied to Operation Fast and Furious. His department refused to even submit the matter to a grand jury. 

Garland also knows that it will take months to get any ruling on the matter once Congress can file with a court. That will push any decision and release until after the election. While the administration and liberal legal analysts insisted that courts should expedite any and all trials of Donald Trump before the election, they are not eager for the public to know this information about whether Biden seemed feeble or confused under questioning. 

A court may be a tad confused as to why a president's answers are not privileged, but the actual audio recording of those answers can be privileged.

White House counsel Edward Siskel added to the dubious basis for the claim in a letter to House Judiciary Chairman Jim Jordan (R-Ohio.) and House Oversight Committee Chairman James Comer (R-Ky.) on Thursday. He suggested that, if there were a compelling reason for the audiotapes, it might be different.

“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,” wrote Siskel. But that is not a basis for an executive privilege assertion. How material would be treated is not relevant to whether Congress has a right to the information.

Past presidents have routinely over-extended privilege claims for political purposes. Nixon had his own tapes in the Watergate scandal. Of course, he was denying access to all of the information on the tapes. Yet, in a strange way, that may have been more compelling, since Nixon was arguing that the disclosure would compromise the content of privileged conversations.

Biden is not claiming the actual conversations as privileged; only how he sounded and spoke the words that are already in available transcripts.

For the Justice Department itself, these pendulum swings between being a contempt hawk and dove are enough to give a judge vertigo. The department just prosecuted Trump officials for refusing to appear or supply evidence to Congress. Likewise, arguments of privilege by former Chief of Staff Mark Meadows have been rejected. Yet privilege is now being asserted for this conversation between Hur and Biden, concerning potentially criminal conduct committed when Biden was a private citizen — neither vice president nor president.

In other cases, federal and state prosecutors have argued that Trump's statements on Jan. 6 were criminal, made in relation to private interests and not protected under executive privilege or immunity. Notably, unlike in Biden's case, these were statements made while Trump was president and concerned matters raised during Trump's term. Likewise, prosecutors rejected claims that Trump has any protection over his call with Georgia officials over the demand for a recount. Imagine if Trump had argued that it was privileged to hear his voice, but not to read his words in the call.

Biden's Voldemortian theory of privilege is unlikely to succeed legally, but that is not the point. Garland knows that it is likely to succeed politically. With generally favorable judges in Washington, the Biden administration hopes to run out the clock on the election. If Biden wins the election or the Democrats win the House, there may be no ongoing investigation or justification to support the demand in court. Of course, unlike Voldemort, who simply did not want to be named, Biden wants to remain "he who must not be heard" outside of short, carefully controlled settings.

What Hur heard could therefore remain a privilege of office.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University Law School.