T he request to Merrick Garland to turn over audiotapes of President Biden’s interview with special counsel Robert Hur — which the attorney general has refused — is being painted as another example of GOP overreach. In fact, it is essentially identical to House Democratic efforts to obtain copies of President Trump’s personal tax returns. As a result, Republicans stand on both good political and legal grounds to pursue the matter — and they should.
Biden and Garland say the House Oversight Committee’s attempt to procure those tapes is a purely political effort that also implicates Biden’s privacy. It’s a bit rich for them to make that claim, given the manner in which they have relentlessly pursued Trump under the cover of law, but leave that to one side. These claims are not substantially different from those Trump made during his term with respect to his tax returns.
Back then, the House Ways and Means Committee subpoenaed Trump’s returns in what was transparently an attempt to obtain the hitherto secret documents. The matter was litigated for years in federal court until the Supreme Court without dissent upheld a ruling from the D.C. Circuit finding that Trump had to comply with Congress’s subpoena. Trump complied, and the Democratic-controlled committee made them public after the 2022 midterms and just days before control would pass to the Republicans.
It’s hard to see how these cases materially differ. In both cases it’s clear the party seeking the documents is using the cover of law to obtain something for a predominantly political reason. The courts should have seen through that and required a stronger nexus between a legitimate legislative interest and the issuance of a subpoena to a president of the opposite party. But they did not, and the rule of law requires its equal application. Democrats made this bed; now they should lie in it.
Nor is Biden’s privacy interest stronger here than Trump’s was in his case. If anything, Trump had the stronger privacy interest in the finances of his family and his businesses. Biden’s interview was given to a public official investigating a possible violation of the law. Nothing he said under oath in response to Hur’s questions could possibly have revealed anything of such an intimate nature that it would reveal purely private information.
Everyone knows why Republicans want the tapes and Democrats resist releasing them: the possibility of their showing that Biden’s memory and reasoning are even worse than is commonly believed. That’s certainly the impression that Hur’s report gave, but that document contained only edited snippets of the two-day proceedings. The transcripts of that interview have been released, but the tapes would provide a richer picture of the president’s actual state of mind as he replied. The tapes could show that Biden is more in command than the transcripts imply, or they could show someone whose faculties are in sharper decline than the administration lets on.
If anything, these factors militate in favor of the tapes’ release. The American people should know if they are about to elect someone with questionable mental acuity, and clearly, hearing the tapes would help them assess that.
No one doubts that were the shoe on the other foot, each party’s positions would be reversed. That shouldn’t matter, though, to a court. The law is the law. A House committee charged with oversight of the executive branch wants information that will arguably help it fulfill its purpose. The connection between the information sought and the putative purpose may be flimsy, but it’s not nonexistent. Under the precedent set in Trump’s tax-records case, the House stands on solid ground to continue its pursuit.
That means at minimum continuing with its efforts to hold Garland in contempt of Congress. Congress has increasingly resorted to the contempt process when a White House official of the other party refuses to comply with a subpoena. This might be yet another sign of the breaking down of political norms in our partisan era, but that is no reason why Republicans should unilaterally disarm.
Pursuing this matter, through the contempt process and in court, also gives Republicans something that might be of greater value than the tapes themselves: keeping Biden’s mental state in the public eye. The Hur report was so explosive when released that Biden convened an unscheduled press conference to rebut it — only to have his performance increase doubts as to his abilities.
Every time the GOP presses the matter of the Hur interview, the media have to report it and the circumstances surrounding the initial report’s release. The White House’s refusal to release the tapes will cause many to wonder what they may be hiding. There’s simply no way the Biden team can win on this; they can only try to limit the damage Biden’s own faltering interview caused.
Politics is rarely pretty, and this is bare-knuckled combat. Here, though, Republicans have the law and the public interest on their side. They would be foolish not to press their advantage as far as they can take it.