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Executive privilege over the audio, but not the transcript?

President Joe Biden‘s assertion of executive privilege over special counsel Robert Hur’s audio recording of their classified documents interview sparked criticism from Republicans and legal experts after the president previously waived his privilege of the interview transcript.

A few hours before the House Judiciary Committee‘s hearing to hold Attorney General Merrick Garland in contempt over the audio, Biden’s counsel and the Department of Justice revealed the president had decided at the eleventh hour to claim executive privilege over the recordings, meaning Biden had asserted his right under the separation of powers to withhold the audio from Congress.

House GOP members spent much of the Judiciary hearing, and later an Oversight Committee hearing, questioning the validity of Biden’s assertion, arguing it was for political reasons and a way to avoid shedding light on the president’s “declining” mental state.

“That tape must be quite something if the administration of the president has decided to assert executive privilege to keep it from the committee in the course of an impeachment inquiry,” Rep. Dan Bishop (R-NC) said during the Judiciary hearing, referencing the broader inquiry the GOP is conducting into the Biden family’s business dealings.

Following Hur revealing that he found Biden had mishandled classified documents but that he would not prosecute Biden for it, House Republicans demanded the transcript of Biden’s interview with Hur, the audio of the interview, and several other materials. Prior to Hur first unveiling his findings, Biden declined to assert executive privilege over any of the report. Then, the DOJ proceeded to provide Republicans with the interview transcript and nearly every other item they asked for — with the exception of the audio.

The issue? Experts say that because the president already authorized the DOJ to release the transcript — which is understood to be verbatim from the recordings — it is likely he already waived privilege over the audio recording.

The agreed-upon parameters of executive privilege allow the president and his advisers to “discuss issues candidly, express opinions, and explore options without fear that those deliberations will later be made public,” according to public interest law professor John Banzhaf from George Washington University Law School.

“But here those discussions and opinions have already [been] made very public,” Banzhaf said in a statement provided to the Washington Examiner. “The cat is out of the bag.”

Banzhaf noted that his statements are not a result of political bias, as he filed the formal complaint that led to the Fulton County, Georgia, investigation and indictment of Trump.

The professor pointed out that the conversation released in the “word-by-word” transcript was not between the president and his advisors, but instead a conversation between Biden and a law enforcement officer “investigating whether he should be prosecuted for a crime.”

“But obviously the purpose of executive privilege is not to keep damaging information from Congress simply because it could embarrass a president or affect his political chances,” Banzhaf noted.

“Whether we like it or not, recordings by high government officials, even those made without their knowledge or consent, have been used to cause embarrassment, and possibly even to obtain political advantage,” Banzhaf continued.

Tom Fitton, the president of the conservative watchdog Judicial Watch, said Biden’s move “appears to be a novel use of executive privilege” and that he plans to file a legal challenge to it.

Conversations over whether Garland deserves to be held in contempt of Congress for not turning over the audio recording have divided the parties. The House Oversight hearing descended into chaos on Thursday night, with Rep. Marjorie Taylor Greene (R-GA) lobbing insults and trading barbs with Reps. Jasmine Crockett (D-TX) and Alexandria Ocasio-Cortez (D-NY).

At one point, Greene said, “I think your fake eyelashes are messing up your reading” to Crockett, angering Ocasio-Cortez, who demanded the Georgia Republican to apologize and have the words struck from the record.

In the Judiciary hearing, which stayed more civilized, Republicans questioned why they could have the transcript but not the recording.

“They don’t get to choose,” Rep. Kelly Armstrong (R-ND) said.

“The person providing the evidence doesn’t get to choose the manner and form in which the evidence is provided. … There’s a difference between a transcript and a video and audio,” Armstrong continued. “And I don’t possibly understand the argument of ‘we’ll release the transcript, but we won’t release the tapes.’”

Both contempt resolutions from the Judiciary and Oversight Committees passed on Thursday, with the measures now heading to the full House for a floor vote to be scheduled by House GOP leadership.

The committee’s contempt resolution would likely not result in any criminal proceedings for Garland, as he heads the Justice Department. Spokespeople for the DOJ have disputed the legitimacy of the committee’s efforts in letters to Congress and warned that releasing the audio would have a chilling effect on witnesses coming forward to law enforcement.

In its most recent letter to Congress, the DOJ also said the executive branch’s “longstanding position” is that an official who asserts the president’s executive privilege cannot be prosecuted for contempt.

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