Former U.S. Attorney General Michael Mukasey has joined the legal battle to publicly release audio recordings of President Biden’s interview with special counsel Robert Hur, saying the Justice Department’s argument to withhold them is “flawed.”
Mr. Mukasey, who served as attorney general under President George W. Bush from 2007 to 2009, filed a declaration in federal court in Washington, D.C., over the weekend accusing government lawyers of misrepresenting a letter he wrote in 2008 to justify keeping the recordings under wraps.
The letter, which Mr. Mukasey authored during special counsel Patrick Fitzgerald’s probe into the unmasking of CIA spy Valerie Plame, was used by the White House to explain why Mr. Biden invoked executive privilege to block access to the recordings.
In a letter to Congress, Attorney General Merrick Garland cites Mr. Mukasey’s letter saying that releasing the audio recordings would discourage witness cooperation in the future.
But, Mr. Mukasey wrote in his new legal filing, his 2008 letter was written concerning “official White House actions.”
He argued that Mr. Biden’s sit-down with the special counsel was “private conduct” by the president, not “frank and candid deliberations among senior presidential advisers.”
“I believe the assertion of executive privilege made here goes well beyond the limits of any prior assertion and is not supported by the 2008 Executive Privilege Letter or other precedents relied upon by the Department,” Mr. Mukasey wrote in a filing in the U.S. District Court in Washington.
“The reasons for invoking the privilege are entirely unconvincing and I believe that by pressing this flawed privilege assertion, the Department has lost sight of the true institutional interests of the presidency and is putting at risk the important traditions and principles on which the doctrine of executive privilege rests and this the ability of this and future presidents to invoke that doctrine when necessary and appropriate,” Mr. Mukasey wrote.
The ex-attorney general also added that the White House’s previous release of a written transcript of the interview voided any “expectation of confidentiality.”
He said the audio recordings could help shed more light on why Mr. Hur did not charge the president, despite concluding he “willfully retained and disclosed classified materials.”
Mr. Mukasey’s filing was made as part of a lawsuit by the conservative Heritage Foundation and Judicial Watch, along with several news outlets, including CNN, demanding the White House release the tapes.
Separately, House Republicans, led by Speaker Mike Johnson of Louisiana, are also attempting to enforce a subpoena in federal court against Mr. Garland for blocking their access to the audio recordings.
Earlier this month, all but one House Republican voted to hold Mr. Garland in contempt of Congress, but the Justice Department said it would not prosecute the attorney general for refusing to turn over the audio.
Mr. Hur’s interview with the president in October is one of the most hotly debated parts of his investigation into Mr. Biden’s handling of classified documents.
The report declined to charge Mr. Biden with criminal mishandling of records after he left the vice presidency, depicting Mr. Biden as “a sympathetic, well-meaning, elderly man with a poor memory.”
Mr. Hur said a jury would likely not convict the president of mishandling documents because of his faulty memory.
The report states that during Mr. Biden’s interview with special counsel investigators, he couldn’t recall when his son Beau died or events from his time as vice president.
The Justice Department has released transcripts of Mr. Biden’s interview after the Hur report was made public, but not the audio recordings that are in its possession.
Mr. Hur, who has since resigned from the Justice Department, spoke about the importance of the audio recording during a recent congressional hearing. He said the recordings are evidence that helped shape his decision not to charge Mr. Biden.
The interview is the only time in history that a sitting president sat down with a prosecutor mulling potential criminal charges against him.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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