House urges court to expedite enforcing Hur audio subpoena

The House Judiciary Committee asked a judge on Friday to speed up forcing Attorney General Merrick Garland to hand over audio recordings of an interview between former special counsel Robert Hur and President Joe Biden.

House attorneys said in court papers that a preliminary injunction was necessary because the “clock on the 118th Congress” is “ticking,” and the audio recordings were needed for lawmakers to perform their oversight duties adequately and conclude their impeachment inquiry into the president.

The request comes as part of House Republicans’ fight with the Department of Justice to obtain tapes from the interview Hur conducted last fall with Biden during his inquiry into the president’s handling of classified material. Biden, 81, came off as a “well-meaning, elderly man” with a declining memory during the interview, Hur said. The special counsel declined to prosecute him for mishandling classified documents in part for that reason.

The DOJ provided a transcript of the interview, but Republicans argued that was insufficient and that the audio tapes of it were the “best evidence” for lawmakers.

“The transcripts do not capture either verbal context (tone, emphasis, inflection, volume, and pace) or nonverbal context (hesitating and pausing),” House attorneys wrote, adding that the transcripts also did not include “filler words.”

The DOJ has refused to provide the audio, arguing it is protected by executive privilege, would serve to discourage witnesses from working with the department in future investigations, and would be prone to AI manipulation. Democrats have said Republicans’ effort to obtain the recordings is driven by their purported desire to seize on the widespread concerns about Biden’s mental fitness and to use it against his reelection campaign and to boost former President Donald Trump.

After subpoenaing Garland for the tapes to no avail, the House threatened to hold Garland in contempt of Congress over the matter, prompting the White House to assert executive privilege over the tapes in mid-May. Republicans voted to hold Garland in contempt one month later, and then they filed their lawsuit on July 1. They argued in their complaint that DOJ’s claim of executive privilege over the audio but not the transcript was a “frivolous assertion.”

Court processes can take months or longer to play out, and House attorneys argued Friday that lawmakers’ need for the audio was urgent. A preliminary injunction, if granted, would involve Judge Amy Berman Jackson immediately ordering Garland to comply with the subpoena while the judge works to reach a final ruling on the case.

“The Committee’s injury is temporal, too,” House attorneys argued. “And the harm caused by the deprivation of information, compounded by the ticking clock, is particularly acute.”

The committee’s push for the tapes comes as others, including the conservative watchdog Judicial Watch and a CNN-led media coalition, are also engaged in a legal battle with the DOJ to obtain the audio.

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The groups have filed lawsuits of their own to enforce Freedom of Information Act requests, and the DOJ is raising similar objections about executive privilege to argue the recordings are exempt under FOIA.

The DOJ declined to comment on the request for a preliminary injunction.