James Burnham at WSJ yesterday makes my comparison to the Nixon tapes better than I did .
"Joe Biden was sworn into the Senate in 1973, the year before Richard Nixon resigned the presidency. Apparently the young senator was taking notes. Mr. Biden echoed his predecessor last week by claiming executive privilege over tapes of an important presidential discussion. The current president’s argument, however, is much weaker.
Special counsel Robert Hur interviewed the president in October about Mr. Biden’s handling of classified material during his time as a senator, vice president and private citizen. Mr. Hur recorded the conversation to prepare a transcript, which was subsequently released to the public. The House now wants the audio file, and two committees have subpoenaed it. Despite releasing the transcripts, the Biden administration has invoked executive privilege to conceal the tapes.
The assertion of privilege isn’t based on the interview subject’s status as president. The Supreme Court explained in U.S. v. Nixon (1974) that executive privilege pertains to “presidential communications in the exercise of Art. II powers.” Mr. Hur spoke with Mr. Biden about his personal conduct before his inauguration, meaning presidential communications weren’t at issue.
Mr. Biden has instead claimed, at Attorney General Garland’s request, that he can assert privilege over the Justice Department’s “law enforcement functions.” That is how the president justifies concealing not only the tapes of his interview with Mr. Hur but also those of his ghostwriter, Mark Zwonitzer, a private citizen.
Whatever the application of executive privilege to Justice Department investigations of private citizens, it can’t be used to conceal tapes after transcripts have been released. Mr. Biden waived whatever privilege might protect these interviews when he released their contents in full.
In arguing to the contrary, Messrs. Biden and Garland rely on a 2008 opinion by Attorney General Michael Mukasey deeming privileged certain interviews by special counsel Patrick Fitzgerald. But the contents of those interviews—concerning high-level White House discussions—were confidential. Mr. Mukasey asserted privilege over information, not audio recordings.
Mr. Garland cites a handful of judicial decisions that purport to establish a distinction between audio recordings and transcripts, but none support his attempt to withhold the tapes from Congress. How public-records law applies to recordings of astronauts in the Challenger disaster, or how the common-law right of access applies to video depositions of President Clinton in a criminal case involving others, tells us little about the present context.
Ironically, Mr. Garland invokes Richard Nixon, supporting the former president’s argument in Nixon v. Warner Communications (1978) that the press didn’t have a legal right to obtain tapes that had been admitted into evidence at a trial for some of his former advisers.
The attorney general claims that asserting privilege over the audio recordings is necessary to protect the integrity of criminal investigations. But we already know what Messrs. Biden and Zwonitzer said based on the transcripts. Even if releasing an audio recording could harm some hypothetical criminal case, that isn’t at issue here. The investigation is over and the case is closed. Besides, Congress has a strong legislative interest in ensuring that the department it created is enforcing with integrity the criminal statutes it enacted.
Mr. Garland claims that concealing the tapes is necessary to ensure future witnesses cooperate with investigations. Yet it’s unlikely that anyone would agree to transcriptions but not audio recordings. Even if that were the case, it wouldn’t undermine future investigations. The Federal Bureau of Investigation hardly needs recordings to do its work and routinely relies on agent-written summaries of interviews.
Further, the Justice Department doesn’t rely on strangers’ munificence or let witnesses dictate the terms of its investigations. It relies on compulsory process. When several White House staffers and I sat for interviews with special counsel Robert Mueller’s attorneys during their investigation of the Trump administration, we weren’t doing them a favor. We sought to avoid being summoned to a grand jury.
Mr. Biden’s parallels with Nixon extend further. In resisting disclosure of his recordings, Nixon lamented that they “will be seized upon by my political and journalistic opponents.” Mr. Biden has likewise justified his stonewalling by claiming that the tapes would be used “for partisan purposes.” But fear of political consequences isn’t a legitimate basis to refuse compliance with a congressional subpoena, then or now.
Finally, the administration’s justification for defying congressional subpoenas stands in uneasy contrast with its prosecution of political opponents for similar conduct. The Justice Department prosecuted Trump aides Steve Bannon and Peter Navarro for criminal contempt because they refused to comply with congressional subpoenas on grounds of executive privilege. Save for a handful of guilty pleas in recent decades, these were the first prosecutions for contempt of Congress in roughly 40 years.
Mr. Biden’s refusal to release the tapes is another maneuver that is difficult to square with the administration’s claimed embrace of the “longstanding norms regarding the Department’s independence.” The long-term consequences of this gambit are uncertain, but for now Congress and, if necessary, the courts, must swiftly reject it. If Nixon had to produce the tapes, so does Mr. Biden."
Mr. Burnham served as senior associate counsel to the president (2017), deputy assistant attorney general (2018-20) and counselor to the attorney general (2020). He is now the principal at King Street Legal PLLC.
Biden, Nixon and the Hur Report - WSJ
