A federal appeals court on Monday rejected former President Joe Biden's emergency request to block the release of audio recordings and transcripts of his interviews with a memoir ghostwriter, materials obtained during special counsel Robert Hur's classified-documents investigation.
The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled 2-1 that privacy concerns do not outweigh the public interest in disclosure of the now-redacted materials. The court maintained an existing temporary block on disclosure through Aug. 3, giving Biden time to pursue further review.
The Justice Department obtained recordings of Biden's 2016 and 2017 conversations with Mark Zwonitzer, his ghostwriter for the memoir "Promise Me, Dad." Hur's team prepared transcripts during its investigation into Biden's handling of classified information from his time as vice president under Barack Obama and as a U.S. senator from Delaware.
Hur declined to pursue criminal charges against Biden, concluding prosecutors could not prove beyond a reasonable doubt that he willfully retained or disclosed the material. In his report, Hur described some exchanges with Zwonitzer as "painfully slow" and wrote that Biden could appear to a jury as a "sympathetic, well-meaning, elderly man with a poor memory."
What the Right Is Saying
The conservative think tank Heritage Foundation, which filed Freedom of Information Act requests seeking the materials more than two years ago, has led the push for disclosure. The organization argues the public has a compelling interest in reviewing recordings and transcripts that formed the basis of Hur's prosecutorial decision.
Heritage Foundation officials have maintained that voters deserve to see the full context of how a presidential candidate's cognitive state was characterized by investigators, particularly when those observations informed decisions not to pursue charges.
Republican lawmakers on the House Judiciary Committee have also sought the materials, arguing they are essential for congressional oversight of the Justice Department's handling of investigations involving political figures. The committee received redacted versions following the DOJ's reversal in February.
Conservative commentators have pointed to Hur's descriptions of Biden's memory difficulties as relevant to public policy discussions about age and fitness for office, particularly given the intense scrutiny on presidential candidates' mental acuity during election years.
What the Left Is Saying
Biden's attorneys have argued that conversations during the memoir interviews were personal and intended to remain private. They maintain Biden is now a private citizen not seeking public office, strengthening his claim to privacy protection.
The legal team has contended that these communications should be shielded under the Privacy Act. In their filings, they emphasized that former presidents retain certain privacy interests in personal recordings made outside of official White House duties.
Dissenting Judge Florence Pan, an appointee of President Biden, wrote that he "has shown a substantial privacy interest" in the conversations with his ghostwriter. She argued the majority's decision failed to adequately weigh the intrusion on personal privacy that disclosure would cause.
Democratic allies have echoed these concerns, arguing that allowing government retention and release of private recordings sets a dangerous precedent for former officials. They contend the materials contain sensitive personal reflections not relevant to public accountability.
What the Numbers Show
The D.C. Circuit panel vote was 2-1, with Judges Karen Henderson and Justin Walker joining the majority opinion while Judge Florence Pan dissented.
The temporary injunction remains in place until Aug. 3, giving Biden approximately two weeks to seek further appeals, including potentially requesting en banc review from the full circuit court or filing for a stay with the Supreme Court.
Heritage Foundation filed its initial FOIA requests more than two years ago, making this one of the longest-running legal disputes over records from Hur's investigation.
Hur's 345-page report was released publicly in February 2024. The special counsel conducted interviews with Biden across five sessions totaling approximately seven hours.
The Bottom Line
The appeals court ruling represents a significant setback for Biden's efforts to keep his ghostwriter conversations private, though the temporary block through early August provides a window for further legal action.
The case raises broader questions about the scope of Privacy Act protections for former officials and whether personal recordings obtained during investigations can be withheld from public disclosure. Courts have historically balanced executive branch discretion in withholding records against the public's FOIA-based right to government information.
If Biden pursues additional appeals, observers will watch whether he requests Supreme Court intervention before the current block expires. Any release would come with redactions, though the scope of those redactions remains contested.
The case also highlights ongoing tensions between DOJ's obligations under transparency laws and privacy interests of individuals who interact with government investigators. Future rulings in similar disputes may look to this decision for guidance on where courts draw that balance.