A conservative organization is urging a federal judge to speed up a court battle over access to audio recordings of five hours of interviews President Joe Biden had with a special prosecutor who later chose not to recommend criminal charges over allegations Biden mishandled classified information.
Lawyers for the Heritage Foundation argue in a new court filing that Biden’s invocation Thursday of executive privilege in response to a House subpoena for the audio adds urgency to three pending Freedom of Information Act lawsuits seeking the recordings.
Heritage said the Justice Department didn’t need as much time to prepare its response as it had argued previously, pointing to the fact that Attorney General Merrick Garland sought the privilege assertion from the White House on Wednesday and received it the following day.
“The Department’s asserted time constraints were misleading,” Samuel Dewey and other lawyers for the group wrote in their Friday afternoon submission. “The Department did not need the time to prepare a position and declarations it twice told the Court it did. A formal assertion of Executive Privilege is an extraordinary undertaking.”
Heritage’s attorneys also said the fact that two House panels have voted to urge that Garland be held in contempt “adds to the compelling and already extraordinary public interest in the disclosure of the audio recording.”
White House Counsel Ed Siskel and Garland defended the executive privilege assertion as necessary to ensure cooperation in the future with other high-level investigations. Republicans in the House have said they want to test Special Counsel Robert Hur’s assertions that Biden had a poor memory of the events he was questioned about.
Democrats contend that Republicans want to use the clips in campaign ads and other media to fuel their claims that Biden is too old to serve. Garland has already released the transcripts as well as a report in which Hur said jurors would likely see the president as “a well-meaning elderly man with a poor memory.”
Another conservative group, Judicial Watch, filed suit in federal court in Washington in March to try to obtain the audio. Heritage brought a similar suit in April, followed by CNN. Eleven other news outlets, including POLITICO’s sister company Insider, joined CNN’s lawsuit this month.
All three cases are now in front of U.S. District Judge Timothy Kelly, an appointee of former President Donald Trump. Earlier this month, Kelly set a schedule for the cases that gives the Justice Department until May 31 to offer legal arguments in favor of withholding the audio and allows for various filings through July 29. Heritage is proposing that the DOJ make its arguments by May 27 and that all briefing in the case be complete by July 1.
“This schedule is aggressive, but the exigency of the moment and the Department’s clear gamesmanship warrants it,” Dewey wrote.
If the losing side appeals, a final decision on whether to release the audio could come close to Election Day or even after it.
A new lawsuit could also join the others soon. House Judiciary Committee Chair Jim Jordan told POLITICO Friday it is “very likely” the House will file its own court case to try to enforce the subpoena.
A Justice Department spokesperson declined to comment on the new motion, but Heritage’s lawyer said in the filing that the government indicated it will oppose accelerating the timetable for the cases.
Court filings show the Justice Department initially justified withholding the recordings on privacy grounds, but said it might claim other exemptions as the litigation proceeds.
Jordain Carney contributed to this report.
