Former US Attorney General Michael Mukasey has knocked current AG Merrick Garland for making a “flawed privilege assertion” to withhold audio recordings from Congress of President Biden’s interview with special counsel Robert Hur.
Mukasey, who served as the country’s chief law enforcement official under former President George W. Bush from 2007 to 2009, said in a declaration filed in federal court in Washington, DC, on Friday that Garland is wrong to harbor the recordings.
The ex-AG noted that Biden’s attorney general had mistakenly relied upon a 2008 letter authored by himself to assert executive privilege during special counsel Patrick Fitzgerald’s investigation into the unmasking of CIA spy Valerie Plame.
With the transcript of the Biden interview having already been released, Mukasey pointed out, the audio recordings of it could help shed more light on the president’s “mental acuity” and other attributes that led to Hur’s decision not to charge the president in February for having “willfully retained and disclosed classified materials.”
“I am a strong proponent of the President’s constitutional responsibility to assert executive privilege when necessary to protect sensitive information in the possession of the Executive Branch, including confidential information in law enforcement files, the disclosure of which could seriously compromise the Department’s ability to enforce the law,” Mukasey writes in the filing.
“However, I believe the assertion of executive privilege made here goes well beyond the limits of any prior assertion and is not supported by the 2008 Executive Privilege Letter or other precedents relied upon by the Department,” he said.
“The reasons given for invoking the privilege are entirely unconvincing, and I believe that by pressing this flawed privilege assertion, the Department has lost sight of the true institutional interests of the presidency and is putting at risk the important traditions and principles on which the doctrine of executive privilege rests, and thus the ability of this and future Presidents to invoke that doctrine when necessary and appropriate.”
Mukasey argues that Hur’s sit-down with Biden was related to the president’s “private conduct” — rather than “frank and candid deliberations among senior presidential advisers,” as in the case of the FBI interviews about Plame.
Garland’s fears over the audio recordings potentially discouraging witness cooperation in the future was also mentioned in Mukasey’s 2008 letter — but only in the context of probes “involving official White House actions,” not private ones.
Moreover, Mukasey wrote, Biden already “made the political decision to release the transcript” of his interview, voiding any “expectation of confidentiality.
“I believe the public has an overwhelming interest in hearing the audio recording and that that interest in disclosure overwhelms any conceivable intrusion on the President’s privacy interests,” the ex-AG added.
Conservative groups such as the Heritage Foundation and Judicial Watch, as well as some news outlets, filed a lawsuit for the recordings earlier this year, following a Freedom of Information Act request.
In March, Congress had received the transcripts of Hur’s Oct. 8-9 interview with Biden, 81, in which the commander in chief forgot the date of his late son Beau Biden’s death from brain cancer, as well as other significant dates and facts.
Under the leadership of House Speaker Mike Johnson (R-La.), Republicans in the chamber are also attempting to enforce a subpoena in federal court against Garland for denying them access to the audio files.
All but one House Republican in June voted to hold Garland in contempt of Congress for that.
The Justice Department announced soon after that it would not prosecute the Cabinet official over the decision.
