Meanwhile, the Justice Department has been suppressing Biden special counsel Jack Smith’s report on the Mar-a-Lago probe.
Meanwhile, the Justice Department has been suppressing Biden special counsel Jack Smith’s report on the Mar-a-Lago probe.
T his week, a divided three-judge panel of the D.C. Circuit appeals court approved disclosure to the Heritage Foundation of some 70 hours of former President Joe Biden’s communications with the ghost writer of his 2017 memoir about serving as vice president in the Obama administration.
The recordings and transcripts (hereafter, the Biden tapes) were obtained by special counsel Robert Hur, who’d been appointed by Biden’s attorney general, Merrick Garland, to investigate the then-president’s mishandling of classified intelligence files. Though the probe found that Biden had a decades-long pattern of unlawfully retaining such intelligence, Hur opted against prosecuting. He rationalized that Biden’s diminished capacity made it unlikely a jury would unanimously vote to find him guilty.
As I contended at the time, Hur’s analysis was flawed: The issue was not whether Biden, by the time of Hur’s investigation, had become senescent; it was whether, at the much earlier time when Biden failed to follow rules for safeguarding intelligence, he did so knowingly and intentionally. Still, I would have had no problem with the Biden DOJ’s decision not to charge Biden (just as, in another salient episode, the Obama DOJ decided not to charge Obama’s secretary of state, Hillary Clinton) if Garland had just been consistent by declining to charge Donald Trump with mishandling the classified documents that the then-former president hoarded at his Mar-a-Lago (MAL) club and estate. Instead, as Biden ran against Trump, Biden’s AG-appointed special counsel, Jack Smith, dutifully indicted Trump on dozens of felony Espionage Act counts.
The circuit court’s ruling on the Biden tapes, which could be reviewed by the Supreme Court, came after a course reversal by the Trump DOJ, which initially opposed disclosure. Trump administration officials will doubtless be gleeful when the Biden tapes, which are sure to embarrass Biden, are published. I suspect, though, that they will rue the DOJ’s position shift in coming months. If, as is widely anticipated, the Democrats take control of the House next year, among their first moves will be to demand disclosure of Smith’s final MAL report regarding allegations that Trump both illegally retained top secret intelligence and obstructed the grand jury’s related investigation.
The Biden tapes stem from his conversations with Mark Zwonitzer, the writer who assisted him in his memoir, Promise Me, Dad, which deals with a tumultuous year in Biden’s vice presidency. In the book, Biden relates balancing what’s described as his key role steering President Obama’s foreign policy with the personal anguish, first, of watching his eldest son, Beau Biden, die from cancer and, ultimately, of opting not to run for president in 2016. The Biden tapes were thought to be deleted, but Hur’s investigators were able to retrieve them. They factored into the special counsel’s decision that Biden should not be charged.
Heritage has been seeking the Biden tapes from the government under the Freedom of Information Act (FOIA) for two years. Moreover, in mid-2024, House Republicans demanded their disclosure. At the time, President Biden was seeking reelection. When Garland refused to surrender the tapes, the House — then as now in narrow GOP control — voted (216–207) to hold him in contempt. (Patently in physical and mental decline, Biden was eventually replaced at the top of the ticket by Vice President Kamala Harris.)
After Trump won the election, ushering in his nonconsecutive second term, his Justice Department initially persisted in the government’s opposition to disclosure of the Biden tapes to Heritage. Citing various FOIA exceptions, the Trump DOJ seemed cognizant that Trump would inevitably find himself in Biden’s position. (Indeed, Trump had previously fought various attempts by congressional Democrats, prosecutors, and other parties to force disclosure of personal and presidential materials in which he claimed privacy interests. See, e.g., the Supreme Court’s 2020 ruling in Trump v. Mazars, regarding congressional subpoenas for Trump’s personal tax information.)
In February 2026, however, the Trump DOJ did an about-face, asserting that it would release the Biden tapes with some redactions.
Thereafter, Biden personally intervened in the suit, claiming privacy interests. These included a supposed interest in preventing the disclosure recordings of his voice — an odd concern from a man who has been making recorded statements on the public stage for a half-century, including eight years as vice president and four as president.
In June, Judge Dabney Friedrich, a Trump appointee to the district court in Washington, D.C., rejected Biden’s attempt to block disclosure. She reasoned that the public interest in the Biden tapes and their contribution to the decision-making of the special counsel outweighed whatever privacy interests Biden might have. Judge Friedrich stayed her ruling to allow Biden to appeal to the D.C. Circuit.
In permitting disclosure, the circuit court issued an unsigned order joined in by Chief Judge Sri Srinivasan and Judge Gregory Katsas (appointees of Obama and Trump, respectively). Judge Florence Pan (a Biden appointee) dissented. The court stayed its ruling for two weeks (until August 3) to give the former president an opportunity to appeal to the Supreme Court. If the justices take the case, that would likely delay the final decision on disclosure until late this year at the earliest. (The Court’s term does not begin until October and this is clearly not an emergency.)
The circuit may well be right that disclosure is warranted. I have mixed feelings about it.
In general, if a person is not charged with a crime, then the private materials prosecutors have compelled witnesses to surrender during the investigation should not be made public. The rationale for empowering the Justice Department to demand production of evidence is the need to hold people publicly accountable for criminal violations, but if no charges are leveled at a suspect — who, after all, is presumed innocent — the rationale for disclosure of the materials produced under compulsion evaporates.
Special counsel investigations (and their predecessors, probes led by so-called special prosecutors and independent counsels) have been regarded as different. They are inquiries into the alleged misconduct of public officials (generally, the president or executive officers, which is why they create a conflict of interest for the DOJ, prompting the appointment of a quasi-independent prosecutor). When a person occupying an office of public trust is the subject of an investigation, the public has not only the usual interest in seeing lawbreakers prosecuted, but a separate interest — at least equally imperative — in a reckoning for any misconduct and abuse of power, regardless of whether criminal law violations can be proved.
To my mind, our system’s response to this scenario, since Watergate, has been ill-conceived. It is the job of prosecutors to prove criminal law violations, not to provide public accountability for uncharged conduct. The former task is hard enough in the public corruption situation because, in our system, the prosecutor can never truly be independent of the president. (Prosecution is a quintessential executive power, and the Constitution vests that power in the president, who can fire Justice Department subordinates at will.) But the latter task, accountability for non-crimes, is not a prosecutorial duty at all; it is the responsibility of Congress. In the last six decades, however, Congress has delegated (it’s more accurate to say, abdicated) to prosecutors, despite these structural problems.
Regardless of whether this is prudent or practical, it is a fact. Hence, special counsel investigations are conducted on the assumption that the investigation and its underlying evidence will become public even if the public official at the center of the probe is not charged (and historically, decisions not to charge are common).
The tension is obvious. Special counsel regulations are written with a nod toward DOJ protocols against smearing uncharged people and grand jury secrecy rules: A special counsel answers to the AG, and it is up to the AG how much, if any, of the required final investigative report will be aired publicly. Yet, such legal niceties customarily bow to political reality. The AG knows members of the opposition party in Congress will demand disclosure, creating public (and often judicial) pressure to publish the report and supporting evidence. Realizing this, special counsels write their reports in a comprehensive, exacting form — dense with footnotes citing underlying evidence — because the political presumption is that the report will be published even if no charges are filed. (Recall that even before the Justice Department greenlit Robert Mueller’s two-volume report on supposed Trump–Russia “collusion,” readers could preorder it on Amazon.)
This is not the system I would design, but it’s the system we have — and given the aggression and ambition of prosecutors, compared with the dereliction and dormancy of the modern Congress, I don’t see it changing.
After two decades as a prosecutor beholden to the rules against tarring uncharged persons, I find myself hardwired to question the reasoning of the D.C. Circuit majority. Of course, the court’s conclusions are the conventional wisdom on the subject, regardless of my qualms. The judges observe that binding precedents manifest a “weighty” and “significant” public interest in “shining a light” on special counsel investigations. While a non-public person who is not charged is entitled to privacy, “a prominent public figure” will be given the opposite treatment because the public “has a strong interest in evaluating whether the government had the evidence but nevertheless pulled its punches” (internal quotation omitted).
Judges Srinivasan and Katsas add:
Biden does not dispute that the Special Counsel Report relied on the requested materials in assessing whether charges were appropriate, nor does he dispute that the public has an interest in evaluating the Special Counsel’s conduct of the investigation. Because the requested materials would bear on understanding and assessing the Special Counsel’s investigation and his ultimate decision, disclosure of the materials “is likely to advance” the public interest at stake.
Notably, the majority waves aside the dissent’s point that the public interest in disclosure of the Biden tapes is diminished because the special counsel described them in his reporting. They counter that the public interest in accountability includes assessing the special counsel’s own performance; that calls for assessing whether his “characterizations” of evidence were accurate and his reliance on them were on the up and up.
This is important because the Trump DOJ, even as it labors to publicize investigative materials Biden sought to keep under wraps, has been obsessively intent on ensuring that Biden special counsel Jack Smith’s final report in the Mar-a-Lago (MAL) documents case does not see the light of day.
The Trump DOJ has engaged in what has the earmarks of a collusive lawsuit, brought against the government by the president and his two codefendants (Walt Nauta, a White House aide to the president who similarly worked for him at MAL, and Carlos De Oliveira, who was Trump’s MAL property manager). As I’ve detailed (see here and here), Judge Aileen Cannon, a Trump appointee to the federal district court in South Florida, dubiously entertained the suit even though there was no dispute — both Trump-controlled parties opposed disclosure, and Judge Cannon accommodated them by prohibiting disclosure. (Compare the ruling of Judge Kathleen Williams, an Obama appointee to the same South Florida district, reasoning, to the contrary, that the court lacked jurisdiction in Trump’s lawsuit against the IRS and other executive agencies because the president controlled both parties in the litigation.)
Not content with that, the Trump DOJ in May indicted a 62-year-old former DOJ attorney, Carmen Lineberger, for theft of government property because she emailed Smith’s sealed report from the U.S. Attorney’s Office to her personal account. Ironically, in providing discovery, DOJ prosecutors accidentally transmitted the still-sealed report in electronic form to Lineberger’s lawyers; the lawyers voluntarily deleted the materials and returned the flash drives.
Much like Heritage in the case of the Biden tapes, two private litigants — American Oversight and Columbia University’s Knight First Amendment Institute — have sought disclosure of Smith’s Mar-a-Lago report under FOIA. Unlike the District of Columbia federal courts, Judge Cannon concluded that disclosure would cause the sitting president “manifest injustice,” and further ruled that the non-party organizations that sought to intervene in the lawsuit lacked standing. That ruling has been appealed.
The Eleventh Circuit, to which Florida federal appeals are directed, is not bound to follow the D.C. Circuit’s ruling. But it will be hard-pressed not to notice the Trump DOJ’s contradictory positions — disclosure when it suits President Trump’s political interests, suppression when it disserves those same interests.
The Supreme Court is apt to notice, too.