Note from Elie 7/19: The Secret Biden Tape That We Shouldn’t Hear 09:45

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Download the Viator app now to use code Viator10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey, everyone. Ellie here wishing you a happy Friday at the end of another remarkably eventful week in politics and law.

And the news. We talked about Judge Cannon's decision in a special early version this week that came out shortly after the decision. I think it was on Tuesday. And today we're going to turn to an intersection of politics and law that I think is increasingly relevant as Democrats call for Joe Biden to step aside. Also, you've probably noticed that this feed has now been rebranded, updated, improved, upgraded, rewritten.

and is now called The Council. And it features not just my weekly notes, but also weekly notes from Asha Rangappa, Joyce Vance, Barb McQuaid, and Rachel Barco. So stay subscribed. You don't have to do anything if you're already subscribed. If you're not, click subscribe, and you will get not just my stuff, but all of their brilliant output as well. It's an upgrade. And now here's today's note. Forget about Kendrick Lamar and Sabrina Carpenter. And yes, I did have to ask my teenage daughter for those references.

The hottest track of the summer is the secret thus far tape of DOJ special counsel Robert Herr's interview of President Joe Biden. Everyone, it seems, is clamoring to hear it. Major media outlets, essentially every Republican official on the planet, and plenty of moderates and other interested observers of our nation's politics.

Democrats, who continue to call on Joe Biden to drop out of the race with increasing intensity over the past few days, could gather vital support for their cause from the tape's release. Heck, I'm dying to hear the elusive recording myself. But again,

But Attorney General Merrick Garland has refused to make that tape public. And he's absolutely right to take this unpopular stand. To paraphrase the Rolling Stones, as performed by the Justice Department, you can't always get what you want. And we don't give a damn what you need. Not quite as lyrical as the original.

A quick refresher. Back in February, Herr released an explosive report detailing his year-long investigation of Biden's possession of classified documents. The special counsel concluded that Biden had classified materials in his private home and office after he left the vice presidency.

and Biden knew it, but the evidence didn't quite necessitate or justify a criminal prosecution. Memorably, Herr opined that, quote, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory, end quote. Oh,

Naturally, her October 2023 interview of Biden became an object of obsession among Republicans bent on showing that Biden has lost a step or five. The recent frenzy around Biden's mental acuity sparked by his debate debacle has exacerbated demand for the Justice Department to disclose the tape. If he does sound like an elderly man with a poor memory, then audio of the interview would become an accelerant.

on an already raging political fire. Republican House Speaker Mike Johnson offered no pretext about his motivation. He said, quote, we all know why they don't want to turn over the audio because it will show exactly what we all saw on the debate stage a couple weeks ago. That is something they want to cover up, end quote.

Indeed, within days of the report's issuance, two Republican-led House committees subpoenaed DOJ for audio of the Biden interview. But Garland refused, citing executive privilege, the right outcome, but for a bizarre and incorrect legal reason. Executive privilege has nothing to do with this situation. The privilege covers communications between a president and his advisors to enable the government to deliberate candidly and confidentially.

If a president and his secretary of state discuss a diplomatic issue, for example, that's subject to executive privilege. But a president as the subject of a criminal investigation answering questions from a prosecutor, there's nothing privileged, executive or otherwise, about that.

Now, Garland gave a better and more compelling reason for his refusal during congressional testimony. He said, quote, there had been a series of unprecedented and frankly unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files is just the most recent. This was a shockingly combative response from the chronically banal Garland. Essentially, he told House Republicans to go kick rocks.

Indeed, DOJ historically has refused to disclose to Congress or other outsiders non-public information from its criminal investigations. Imagine the precedent if prosecutors complied with the congressional subpoena here. What's to stop any interested outsider from sifting through DOJ's files to mine for dirt against a political opponent, including in cases that never resulted in a criminal charge?

Wouldn't subjects and witnesses hesitate to speak candidly if they knew their voices could someday be broadcast to the world? More broadly, for DOJ to turn the tapes over would compromise its investigative function and undermine the rights of the subject, especially an uncharged subject like Joe Biden. Prosecutors need to do some things outside of public view to protect the case and the participants.

Nonetheless, in March of 2024, the Justice Department agreed to an unusual half measure, release of a verbatim transcript of the her Biden interview, which provided valuable perspective. On one hand, the transcript doesn't exactly read as if Biden has lost his mind. Some of the answers are rambling or non-responsive, but the written words do not convey that he's incapacitated or incompetent in the legal sense.

But the transcript also exposed astonishing dishonesty by the president. After release of the report, for example, Biden ranted indignantly that Herr had asked about the death of Biden's son, Beau. Quote, how in the hell dare he raise that? Biden bellowed. Turns out Biden himself, not Herr, brought up

Bo's death to place a certain event in temporal context. So the transcript has its worth, but take it from an old-time prosecutor. If you're trying to make an impact on a jury or any audience, there's no substitute for the audio. It's far more visceral, more memorable to hear words spoken aloud than to read them on a cold page, particularly where the acuity of the interviewee is at issue.

Republicans in Congress plainly understand this truth, and the transcript only stoked their appetite to get the Her Biden audio. But Garland drew a line. You'll get the transcript, but

but not the tape. You'll be shocked to learn that House Republicans did not graciously accept the AG's compromised position. Instead, they held Garland in contempt, teeing up the case for potential criminal prosecution by, yes, you guessed it, the United States Department of Justice. It took all of two days for DOJ to formally decline to indict its own agency head for acting on the agency's own formal law.

legal position. I wonder what that internal deliberation sounded like. I imagine peals of laughter coming from DOJ headquarters. Quick historical note, by the way, somehow we managed to go our first 220 plus years as a nation without Congress holding any attorney general in contempt. But in 2012, the Republican controlled house with substantial Democratic support held AG Eric Holder in contempt for refusing to provide documents relating to the fast and furious firearm sting operation scandal.

Then in 2019, the Democratic-controlled House held AG Bill Barr in contempt after he declined to provide documents relating to the administration's effort to add a citizenship question to the census. Remember that one? Neither Holder nor Barr was prosecuted, of course. As we just discussed, DOJ typically does not rush to indict its own top prosecutor. Well, now Garland joins their ranks, and we've got a three-administration AG contempt streak intact.

Congressional Republicans eventually tried to go medieval on Garland, raising a variation of an obscure, century-plus-old practice whereby Congress would use its inherent enforcement power to send out a sergeant at arms to arrest and lock up contemptees in a mysterious jail facility located somewhere in or near the Capitol. We actually don't know exactly where it was located.

Now, present-day congressional Republicans weren't so unrealistic as to try to actually imprison the sitting attorney general in some abandoned cloakroom. Instead, they tried to fine him $10,000 per day. Predictably, that creative effort failed. And now, as a last resort, House Republicans have sued Garland in federal court for the tape.

I don't love their chances, though it's not inconceivable, I guess, that they succeed. Heaven knows it's easy to criticize Garland. I've done plenty of that here on this podcast throughout his tenure. As a current member of the media and of the voting public, I'd like to cast scorn on the AG for his decision to withhold the Her Biden audio recording. But as a former prosecutor, I applaud him. We probably won't ever hear the tape, and that's for the best. Thanks for listening, everyone. Stay safe and stay informed.

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