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Washington — A federal appeals court on Monday night denied a bid from former President Joe Biden to keep the Justice Department from giving a conservative think tank redacted transcripts and audio recordings of conversations he had with his biographer roughly a decade ago, but stayed the opinion until Aug. 3 to allow time for further appeals.
In a 2-1 decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected Biden's attempt to stop the Heritage Foundation from getting the material.
Judges Sri Srinivasan and Gregory Katsas said in an unsigned opinion, "We conclude that Biden has not shown a likelihood that the requested materials must be withheld from disclosure." Judge Florence Pan dissented.
"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," Srinivasan and Katsas found. "In that regard, although there is generally a substantial privacy interest in not being identified as the target of an investigation that results in no charges, ... DOJ announced the Special Counsel's appointment and the purpose of his investigation, and the Special Counsel Report describes at length that Biden was investigated for allegedly retaining and disclosing classified materials."
They wrote that "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."
Pan wrote in dissent that the D.C. Circuit's decision "will result in the premature release of Biden's concededly private conversations." The court, she said, "effectively rules in favor of immediate disclosure of the disputed conversations."
"In my view, Biden has shown a substantial privacy interest," Pan wrote. "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."
In response to the D.C. Circuit's decision, TJ Ducklo, a spokesperson for Biden, said, "President Biden's conversations for a book a decade ago that discussed his late son are private, and were provided to the Department of Justice on the express condition they stay that way. Reversing course and making them public is just the latest example of this Administration weaponizing the DOJ for political retribution. It's wrong, and while President Biden disagrees with today's decision, he also respects the courts and the vital role an independent judiciary plays in a healthy democracy."
On July 10, the three-judge panel agreed to issue an administrative injunction stopping the release of the material to the organization for 10 days.
The court said in a brief unsigned order at that time that the purpose of its injunction, which was to expire at 11:59 p.m. on July 20, was to "give the court sufficient opportunity to consider the emergency motion for an injunction pending appeal and should not be construed in any way as a ruling on the merits of that motion."
The recordings at issue in the legal fight date back to 2016 and 2017, when Biden sat down with his biographer, Mark Zwonitzer, for his memoir, "Promise Me, Dad." But they gained interest from the Heritage Foundation several years later following an investigation by former special counsel Robert Hur into Biden's handling of sensitive government records after his vice presidency, which ended in 2017. The former president was not charged with any crimes stemming from Hur's investigation.
The special counsel's report, released in 2024, included passages that referenced Biden's conversations with Zwonitzer. The special counsel wrote the recordings showed the former president's "diminished faculties and faulty memory," and said his conversations with Zwonitzer were "painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries."
Soon after Hur's report was released, the Heritage Foundation filed a public records request for material the special counsel relied on to write specific portions of the report, including the excerpts that referred to Zwonitzer's recorded conversations with Biden.
The Justice Department initially withheld the audio tapes and most of the written transcripts, citing certain exemptions under the Freedom of Information Act. But once President Trump returned to the White House, the department said it intended to provide the material to Congress and the Heritage Foundation.
Biden moved to intervene in a lawsuit the Heritage Foundation had filed in 2024 to force the release of the transcripts and tapes. But last month, a federal judge initially rejected a request from the former president to block the disclosure.
Shortly after she issued her decision, the judge, Dabney Friedrich, agreed to stop the Trump administration from releasing the information for three weeks to give the D.C. Circuit time to decide whether to take action itself. That order was set to expire at 5 p.m. Friday.
Biden's lawyers had argued to the D.C. Circuit that disseminating his discussions with Zwonitzer would be harmful and likened their disclosure to the public release of diary entries or private text messages.
"The private conversations at issue were never intended to be shared with a wider audience, and the Department has them only because it collected the recordings as part of a criminal investigation that resulted in no charges," they argued in a filing.
Biden's legal team also said there is no immediate need for the Heritage Foundation to access the material.
"This FOIA action has been pending for nearly two and a half years, and there is no meaningful public interest — let alone one that must be satisfied in the immediate days or weeks — in the disclosure of decade-old conversations of a former President who is now a private citizen, and who neither holds nor is seeking public office," they said.
But the Justice Department said the public has an interest in seeing the information that Hur relied on during the course of his investigation.
"Releasing the materials will allow the public to assess the persuasiveness of Hur's determinations," department lawyers told the D.C. Circuit in court papers.
Biden's memoir, "Promise Me, Dad," was published in 2017.
