President Joe Biden’s invoking of executive privilege to shield the audio recording of his interview with a special prosecutor about his retention of classified documents amounts to a taxpayer-backed “catch and kill” operation, contends one litigant seeking to obtain the audio. 

Biden’s position against releasing the audio of his exchanges with special counsel Robert Hur comes as the House Oversight and Accountability Committee was poised to vote Thursday evening on holding Attorney General Merrick Garland in contempt of Congress for withholding the recording from Congress. 

The House Judiciary Committee also voted to hold Garland in contempt of Congress. The full House would have to approve such an action. 

That situation is separate from a private lawsuit filed by watchdog groups and news organizations—including The Heritage Foundation’s Oversight Project—under the Freedom of Information Act that insists the Biden audio belongs to the public. 

“You have for the first instance executive privilege used in a context that in my mind is explicitly used for campaign purposes,” Mike Howell, executive director of Heritage’s Oversight Project, told reporters Thursday. (Heritage founded The Daily Signal in 2014.)

In February, Hur released a report on Biden’s improper possession of classified documents from his vice presidency and Senate service. Hur declined to charge the president, in part because of  what he called “diminished faculties” evident during his interview with Biden. 

“It is beyond a shadow of a doubt that this recording would be devastating to President Biden,” Howell said.  “I see Merrick Garland as acting more in a campaign role than as attorney general. There are no legitimate grounds for this invocation.” 

Howell later drew parallels between the efforts of Biden and Garland to block release of the audio with the New York case against former President Donald Trump for attempting to prevent news stories about extramarital flings that occurred two decades ago. 

“This is essentially what they are alleging of President Trump in New York,” Howell said. “This is a catch and kill using government resources and taxpayers money to pay to kill a story. You have President Biden doing exactly what Trump has already been cleared of by the federal government, but on steroids. This is election interference.”

Howell was referring to the Federal Election Commission and the Justice Department, both of which declined to allege that Trump violated campaign finance laws by paying one or more women for their silence before he ran for president in 2016.

White House counsel Ed Siskel argued Thursday that release of the audio would serve only the political ends of Biden’s opponents. 

“The absence of a legitimate need for the audio recordings lays bare your likely goal—to chop them up, distort them, and use them for partisan political purposes,” Siskel wrote in a letter to House Republicans. 

“Demanding such sensitive and constitutionally protected law enforcement materials from the executive branch because you want to manipulate them for potential political gain is inappropriate,” Siskel wrote.

Garland, in a letter to Biden, advised the president that the audio recording—the contents of which were already available in an official transcript—is protected under executive privilege because the president must be able to have candid counsel without fear of immediate public disclosure.

White House press secretary Karine Jean-Pierre told reporters: “Law enforcement files like these need to be protected, and so the president made his determination at the request of the attorney general.”

To House Oversight and Accountability Chairman James Comer, R-Ky., however, this response indicates a “five-alarm fire at the White House.

“Clearly President Biden and his advisers fear releasing the audio recordings of his interview because it will again reaffirm to the American people that President Biden’s mental state is in decline,” Comer said in a public statement. “The House Oversight Committee requires these recordings as part of our investigation of President Biden’s mishandling of classified documents. The White House is asserting executive privilege over the recordings, but it has already waived privilege by releasing the transcript of the interview.” 

If the audio becomes public, Heritage’s Howell argued, it will be because of the FOIA lawsuit. If the full House votes to hold Garland in contempt of Congress, he said, it would be up to the attorney general’s Justice Department to enforce the contempt citation, which would be unlikely. 

Other plaintiffs in the Freedom of Information Act case include Judicial Watch, a conservative watchdog group, and  left-of-center news organizations such as The Associated Press and CNN.

“It’s an interesting hodgepodge of organizations that spans ideological lines,” Howell said, “and I think that is a major rebuttal to the charges from House Democrats that this is some partisan venture.”