First, what is executive privilege? Executive privilege protects conversations where sensitive topics are discussed. A president asserts executive privilege to protect conversations that he has with his advisers, to ensure that they can give him a wide range of advice without having to worry that the confidential advice they give will one day be made public. Executive privilege has nothing to do with conversations that a president might have with a special counsel investigating a possible crime.

Thursday morning, the Biden Administration invoked executive privilege on the five hours of recordings between Biden and Special Counsel Robert Hur when they were subpoenaed by Congress – thus giving Attorney General Merrick Garland the supposed freedom to deny the request. There’s one problem – the transcript for this conversation has already been released. 

Biden had already ceded the privilege when he didn’t assert executive privilege against handing over the transcript of the interview. The thing to protect is the record of the conversation, not the method of its recording. There is no legal distinction between the transcript and the audio recording. 

When Biden failed to assert the executive privilege against releasing the transcript, he essentially declared the conversation unprotected. He cannot now assert the privilege against the release of the audio recording. His claim makes no sense. He’s not trying to protect the confidentiality of the advice he gets from his counselors, he’s trying to protect himself from political embarrassment.

The House Judiciary Committee and the House Oversight and Accountability Committee have voted to hold Garland in contempt of Congress for the refusal to turn the recording over to Congress. The Speaker of the House will decide if the contempt resolution is brought to the floor.

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