(Bloomberg) -- The Justice Department is fighting the release of an interview recording of Joe Biden cited by a special counsel as proof of his “poor memory,” amid intense scrutiny of the president’s health and demeanor.
Government attorneys filed their latest brief Thursday opposing disclosure of the recording of the president’s October interview with Special Counsel Robert Hur during an investigation into Biden’s handling of classified material after leaving the vice presidency. The lawyers said an official’s condition shouldn’t be a reason for public release and that it may hurt other investigations.
“Any public interest in disclosure must be based on how disclosure would shine a light on the activities of Special Counsel Hur, not on President Biden,” they wrote.
Key deadlines approach next month in lawsuits from congressional Republicans, conservative advocacy groups and media outlets seeking access to the recording. That’s also when Biden is set to formally accept his party’s nomination at the Democratic National Convention although there are growing calls for him to step aside.
At the start of the week, a judge presiding over another case — House Republicans’ bid for the Biden recording — approved the parties’ joint proposal for a speedier timeline, setting a schedule for written briefs that wraps up in late August.
While redacted transcripts of interviews with Biden and his ghostwriter Mark Zwonitzer were released earlier this year, the lawsuits argue that isn’t the same as hearing their voices. They say there’s strong public interest in disclosure, especially as the Nov. 5 election draws near.
Earlier on Thursday, a judge heard preliminary arguments in a fight over access to unredacted transcripts and recordings of Zwonitzer’s interviews with Hur’s team. US District Judge Ana Reyes set a hearing for Sept. 19, with briefs due in the coming weeks.
Splash Factor
Reyes expressed skepticism about how the Justice Department could justify keeping pieces of Zwonitzer’s interview secret when so much was already public. But she also pressed a lawyer for the conservative Heritage Foundation, which filed the lawsuits, to explain why they needed recordings if they could read the transcripts.
“The point is, you want to make a splash,” the judge said. “I don’t think splash factor is a public interest.”
In a nearly 400-page report released in February, Hur concluded there was evidence that Biden kept classified information after he left the vice presidency. But the special counsel didn’t recommend pressing charges because the evidence didn’t establish Biden’s guilt “beyond a reasonable doubt.”
Hur wrote that Biden came across in his two-day interview “as a sympathetic, well-meaning, elderly man with a poor memory.” The special counsel cited that as one reason prosecutors would find it challenging to convince jurors to convict him of crimes involving “a mental state of willfulness.”
Biden pushed back at the time, telling reporters that his memory was “fine” and that he knew “what the hell I’m doing.”
Biden in May asserted executive privilege over the recording, citing conclusions by Attorney General Merrick Garland that releasing it could hurt the department’s ability to carry out “similar high-profile criminal investigations” in the future involving the cooperation of White House officials.
Legal challenges were filed in federal court in Washington. Freedom of Information Act lawsuits that the Justice Department responded to on Thursday are consolidated before US District Judge Timothy Kelly. Two were filed by conservative groups — the Heritage Foundation and Judicial Watch — and one was brought by media organizations (the coalition includes Bloomberg News.)
Briefing is set to finish in early August. The Heritage Foundation pushed for a faster turnaround, arguing the recording related “directly to the question of the president’s fitness for office.” Kelly rejected that proposal, writing that his schedule balanced moving “expeditiously” with giving everyone time to prepare.
The House Judiciary Committee filed a lawsuit against the Justice Department on July 1 to enforce a subpoena for the Biden and Zwonitzer recordings. The government is due to file its response in that case, which is before US District Judge Amy Berman Jackson, by Aug. 6.
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