Viewpoint: House GOP members lack justification for demanding Biden's audiotapes
Hur conducted an investigation into Biden's improper handling of classified documents from his tenure as vice president and decided that no criminal charges were necessary. After releasing written transcripts of the interviews with Hur, publicly available earlier this year, Biden objected to a Congressional subpoena for the recordings.
Hur's report regarding his investigation depicted Biden in an undesirable light when he stated that if he had chosen to prosecute Biden, the jury would probably see him as a sympathetic, well-meaning elderly man with a poor memory, potentially resulting in a favorable verdict. Subsequently, Biden made the transcripts public but refused to surrender the audiotapes. CNN is currently suing for the audiotapes, arguing that transcripts are inadequate substitutes for recordings.
Although Garland's protection of Biden's executive privilege isn't foolproof – following the disclosure of the transcripts, it's more challenging for Biden to argue that the audiotapes should remain privileged – the basis for the Judiciary Committee's subpoena of the tapes is even less stable.
It's plausible that Biden is attempting to have it both ways concerning presidential protections. While stating a robust stance regarding the preservation of his own information, he has likewise denied former President Trump's executive privilege in regards to classified documents seized from Mar-a-Lago, Florida. This case is pending at the federal district court in Miami, with no trial date set yet.
Despite this seeming contradiction, Biden's self-interest in maintaining his elective position and preserving the confidentiality of executive branch operations justifies the distinction between their circumstances. In comparison to Trump, who seeks immunity from potential criminal prosecutions by claiming a majority of the documents were personal rather than official, Biden's goal is to prevent undue congressional intrusion into executive branch operations.
Having released the written transcripts, Biden takes a more circumscribed approach to executive privilege than Trump did. However, claims of executive privilege usually pertain to maintaining the confidentiality of conversations or deliberations with aides. Here, Biden's justification is based on defending the confidentiality of criminal investigations to shield their integrity. If audiotapes can be subpoenaed in this dispute, witnesses in future cases may be hesitant to cooperate out of fear their conversations could become public, and thus hinder the law enforcement process.
While Biden may have already released the transcripts, the risk to future witnesses is significantly increased if Congress has the power to subpoena their testimony. Moreover, Biden's withholding of audiotapes cannot be attributed solely to executive privilege. There are concerns about the separation of powers when Congress attempts to obtain information about the president.
Such concerns are magnified when congressional committees seek information from a president, as members may try to circumvent the executive branch's authority to enforce the law or use their subpoena power for political gain. The Supreme Court has issued safeguards that take into account both the interests of transparency and those of the executive branch to maintain a proper balance in instances where Congress demands presidential information. Although executive privilege can be a powerful argument against a congressional subpoena, the court has acknowledged that presidents may shield other unprotected information as well. Separation of powers considerations do not grant presidents unconditional blockages, but they do safeguard them from illegitimate congressional action. In this instance, the onus is on Congress to substantiate their claim to the information.
Strikingly, the Supreme Court formulated these principles in a separate case related to Trump. The matter at hand was subpoenas of Trump's financial records by Democrat-controlled House committees, purportedly to uncover potential legislative reform in several areas, including money laundering and foreign influence on elections. Here, Trump didn't assert executive privilege over the records.
Instead, the case presented new legal conundrums, prompting the Supreme Court to establish protocol for lower courts to evaluate the validity of a congressional subpoena. The case was returned to the lower courts, where access to some of the requested records was ultimately permitted.
In its decision for Trump v. Mazars, the Supreme Court articulated two primary principles. First, a congressional subpoena must align with a "legitimate legislative purpose"; that is, it must support lawmaking, impeachment proceedings, or other authorized committee tasks. Second, presidents can protect information using executive privilege or other means to safeguard executive authority. Separation of powers considerations do not give presidents the authority to halt lawful congressional actions, but they do maintain a boundary against abuses. Crucially, the responsibility to justify their claims belongs to Congress.
While this context concerns Trump, the same principles could potentially apply to Biden's circumstances. A proposed Congressional subpoena would attempt to access presidential information, and it could be justified based on legislative purposes. However, undue interference with the executive branch and undue scrutiny might compromise legitimate operations or be viewed as politically motivated.
In upholding these principles, the Supreme Court asserts the importance of congressional oversight, while also acknowledging the significant consequences of indiscriminately disclosing confidential presidential information. Both branches of government have roles and responsibilities to fulfill. The higher court's previous ruling from the Trump case demonstrates that both clarity in the boundaries of their respective authorities and individual circumstances must be taken into account. Each case will present its own unique set of challenges and merits, but the jurisprudence for presidential subpoenas remains a crucial precedent.
Essentially, congressional panels can't demand the audio recordings just because lawmakers want to prove Biden broke the law regarding classified documents. Moreover, while the former vice president may have personal reasons for withholding the tapes, like fearing they could paint him in a bad light as the election nears, Congress needs a non-partisan reason to pursue the tapes.
Secondly, even if there's a legitimate legislative motive - House Republicans have mentioned a few motivations for wanting the Hur audiotapes, including potential reforms regarding the use of special counsels to probe presidents - a subpoena of a president must limit its scope to necessary information not available elsewhere.
To achieve this, congressmen must clearly explain, possibly to a court, why the interview transcripts aren't sufficient for their legislative goal and what they think they'll discover from the audio that they won't learn elsewhere. So far, as the Justice Department pointed out when rejecting the subpoena, they haven't. Curiously, releasing the transcripts weakens the case for safeguarding the tapes, but it also weakens the argument for a subpoena about the tapes.
It's not surprising that a congressional committee would overstep its bounds when issuing a subpoena to a president and endanger executive power. As I've mentioned before, the House January 6 committee encroached on the executive authority in its probing. In its investigation into the Capitol attack, the committee behaved more like it was directing a grand jury investigation rather than carrying out a legislative inquiry.
If congressional committees expect to gain knowledge from presidents, they cannot merely declare a general interest in the information and subpoena potentially relevant records. They must be precise in explaining why they require this access.
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House Republicans could potentially argue that they need Biden's audiotapes to form their own opinions about the investigation, as they may contain nuances not present in the written transcripts. The separation of powers principle also raises concerns, as overreach by Congress in obtaining presidential information could infringe on executive branch operations.
