Former President Joe Biden lost his bid to block the release of audio recordings and transcripts of interviews with his longtime ghostwriter that featured prominently in Special Counsel Robert Hur’s investigation into his unlawful retention of classified material.
The Ruling
A three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit found in a 2-1 ruling released late Monday that there is a “substantial” public interest in disclosing the material the former commander-in-chief wants to keep private.
The majority – which included D.C. Circuit Chief Judge Sri Srinivasan, an Obama appointee, and Judge Gregory Katsas, a Trump appointee – noted redactions to the audio would help protect Biden’s privacy. “We conclude that any remaining incursion on personal privacy from disclosure of the now-redacted materials likely does not outweigh the public interest in disclosure,” the ruling stated.
The dissent came from Judge Florence Pan, who was nominated by Biden. She wrote the ex-president has shown a “substantial privacy interest” in keeping the material hidden. “The conversations at issue took place in Biden’s home, and the recordings of them were obtained by the government in the course of a criminal investigation that did not lead to an indictment,” she wrote.
The divided panel suspended its decision until August 3 to allow Biden more time to consider another appeal. “He can do one of two things: He can ask for an en banc review, [where] every judge on the D.C. Circuit would come together and review this, or he can go right to the Supreme Court and ask them for a review,” Megyn said on Tuesday’s Megyn Kelly Show, adding that “neither one is going to pan out for him.”
The Legal Battle
The legal battle stems from a March 2024 lawsuit filed by the Heritage Foundation under the Freedom of Information Act (FOIA) seeking roughly 70 hours of recordings and transcripts from Biden’s conversations with ghostwriter Mark Zwonitzer for his 2017 memoir Promise Me, Dad.
The recordings were obtained by Special Counsel Robert Hur during his investigation into Biden’s handling of classified documents after leaving office as vice president. Investigators found classified materials at Biden’s Wilmington, Delaware, home and at the Penn Biden Center in Washington, D.C., from his time as vice president and senator.
One of the most damaging findings in Hur’s report centered on President Biden’s recorded conversations with Zwonitzer. According to the report, Biden read aloud from notebooks investigators later determined contained classified information. In one quoted exchange, Biden told the ghostwriter, “I just found all the classified stuff downstairs.”
Hur ultimately declined to bring criminal charges against the then-president. The final report, released in February 2024, concluded that a jury would likely see Biden as “a sympathetic, well-meaning, elderly man with a poor memory.” At the time, President Biden denied he shared classified information, telling reporters, “Guarantee you, I did not.”
Political Fallout
Transcripts and some audio of the interviews have already been released, so there are not necessarily any bombshells yet to be found. Even so, putting the story of Biden’s decline back in the headlines ahead of the midterms – especially when you consider he has another memoir on the way – is likely not something Democrats are thrilled about.
“It looks like this is going to come out, and I wonder if you’re a Democrat, if you’re thinking, just let it come out now… July is better than mid-August… The closer we get to midterms, the worse it is,” Megyn posited. “If he petitions for an en banc review, that’ll get us through probably til September 3 and now we are even closer. Whatever body he petitions next is going to say no, and they’re going to say no quickly. But the longer he delays this, the more it is going to hurt… because the audio is probably coming out and we’re all going to feast on it. And I’m sure the party would much prefer at this point he just roll over and take his licks on July 21 as opposed to October 31.”
Holmes agreed on the timing aspect but said there is never an ideal time for Dems to revisit this story. “The problem is that it completely eviscerates the credibility of just about every Democrat in Washington D.C. And the Hur saga, in and of itself, is a perfect reminder to the American people just what the Democrat establishment is capable of,” he noted.
As he explained, “the entirety of the Democratic Party” and “its mouthpieces in the media” tried to assail Hur over his conclusion Biden was, as Holmes put it, “an invalid, essentially” and yet the public soon learned it was the party, not the special counsel, spinning a tall tale.
“Six short months later, the American people were treated to exactly what Hur was behind closed doors – and you can see this on a debate stage – and realize that all along, every single Democrat was willing to lie to your face in the blind pursuit of power,” Holmes added. “That is a very troubling thing as you enter a midterm election.”
There is another reason, in Duncan’s view, that the recordings need to finally be released. “I think like at a base level, the tapes need to come out to restore the character and reputation of Hur himself because the way that the Democrats assailed him… was entirely unfair,” he said.
“Why the Biden team is trying to suppress his information? I mean, I guess it’s embarrassment,” Duncan posited. “But at this point, dude, they forced you off the ticket, you were the sitting president of the United States… and then you guys lost to Donald Trump again. Like, pull the Band-Aid off.”
You can check out Megyn’s full interview with Ruthless by tuning in to episode 1,364 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s The Megyn Kelly Channel (channel 111) weekdays from 12pm to 2pm ET.