Justice Department Uses Executive Privilege, Artificial-Intelligence Fears to Fight Lawsuit for Biden–Hur Interview Audio

The Justice Department is using the Biden administration’s invocation of executive privilege to fight a lawsuit by multiple parties that seek to gain access to the audio from President Joe Biden’s interview with special counsel Robert Hur.

Executive privilege is one of the exemptions the Justice Department cited in a motion on Friday to combat a Freedom of Information Act (FOIA) lawsuit by conservative groups and numerous media organizations over the audio recordings of Biden’s interview with Hur during the special counsel’s investigation into whether Biden had mishandled classified documents.

In a motion for summary judgment filed on Friday, the Justice Department argued: “The recording facially comes within the scope of executive privilege, which is recognized in civil litigation. The audio recording therefore is properly withheld pursuant to Exemption 5, which exempts records that are ‘inter-agency or intraagency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.'” The court documents were first reported by Politico.

The Justice Department also warned that artificial intelligence and deepfake recordings could be used to manipulate the audio:

“The passage of time and advancements in audio, artificial intelligence, and ‘deep fake’ technologies only amplify concerns about malicious manipulation of audio files. If the audio recording is released here, it is easy to foresee that it could be improperly altered, and that the altered file could be passed off as an authentic recording and widely distributed.”

Additionally, the Justice Department suggested that the audio was unnecessary because the Biden–Hur transcripts have already been made public and releasing the audio could make it more difficult to gain cooperation from witnesses in future investigations.

President Biden invoked executive privilege over the audio last month to prevent House Republicans from obtaining it following congressional subpoenas for all materials from Hur’s investigation. The president’s age is a major issue for his 2024 reelection campaign, and the audio tapes could bring even more public scrutiny to Biden’s age.

Republicans have initiated contempt-of-Congress proceedings against Attorney General Merrick Garland over the the Justice Department’s refusal to hand over the interview audio. Garland is set to testify on Tuesday before the House Judiciary Committee at an oversight hearing.

Hur’s lengthy final report, released in February, drew significant attention because of his observations about Biden’s memory issues and how they influenced Hur’s final decision not to pursue criminal charges against the sitting president. Biden strongly pushed back against Hur’s report at a press conference during which he confused the leaders of Egypt and Mexico.

In the report, Hur noted Biden’s difficulty to remember the exact years when he was vice president and the year his late son Beau Biden passed away. Hur’s observations appeared to be substantiated by the transcripts released ahead of his congressional testimony in March.

To begin his testimony, Hur defended the necessity of describing Biden’s advanced age in order to determine whether Biden should face criminal charges. Hur also confirmed that the White House unsuccessfully sought to soften the language in Hur’s report ahead of its publication.

Top Justice Department official Bradley Weinsheimer submitted a sworn affidavit on Friday and declared that the Biden–Hur transcripts matched the audio except for “minor differences,” such as the use of filler words and repetition.

“Besides these exceedingly minor differences, based on my simultaneous review of the transcripts while listening to the audio recording, the transcripts accurately capture the words spoken during the interview on the audio recording with no material differences between the audio recording and the tapes,” Weinsheimer stated.

The Heritage Foundation, one of the parties involved with the lawsuit, accused the Biden administration of tampering with the audio to make Biden seem more competent, based on Weinsheimer’s declaration.

White House spokesman Ian Sams said Heritage’s assertions were a “total lie” and cited the section of Weinsheimer’s statement about how Hur and the FBI made sure the transcripts matched the audio.