Former President Joe Biden will not appeal a court ruling allowing the Trump Justice Department to release transcripts and tape recordings of the Biden's conversations with his ghostwriter.
Biden's lawyers filed a notice of voluntary dismissal Friday in a related case that has the effect of ending the legal battle.
The result is a win for the Heritage Foundation, a conservative think tank that sued in order to publicize the records.
The tapes date back to 2017, after Biden left office as vice president and sat for several hours of interviews with the writer collaborating on his memoir, Promise Me, Dad. In 2022, when Biden was president, he informed the Justice Department that he had discovered classified documents at his Wilmington, Del., home. The Department then began an investigation into his handling of classified document; it collected the tapes as a part of that investigation.
In 2024, Robert Hur, a special prosecutor appointed by the Justice Department concluded that although Biden brought some classified documents to his home, that criminal charges were not warranted. As the special prosecutor's report put it, after reviewing classified documents every day for eight years as Vice President, Biden finding documents at his home "could have been an unremarkable and forgettable event."
The report, however, sparked controversy because it described Biden as "a sympathetic, well-meaning, elderly man with a poor memory." And according to the 2024 report, the tapes of Biden's conversations with his ghostwriter were "painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries."
Conservative activists seeking the tapes hope that the records will validate concerns about Biden's mental acuity before he was elected president. "What you're going to hear on the tapes … is the state of Joe Biden years before he ran for president, when a special prosecutor said he has memory issues," said Jeffrey Clark, a Trump ally and vice president for litigation at the Oversight Project, one of the law firms involved in the effort to access Biden's 2017 tapes.
Clark adds that conservative organizations involved in the lawsuit plan to immediately publicize the entirety of the tapes and transcripts. "We'll put out a link," he told NPR. "It's not more complicated than that."
At the time of the special prosecutor's report, Biden had not yet bowed out of the 2024 election. He bashed it as "not only misleading, but also plain wrong."
A source familiar with the 2017 tapes says they are "painfully boring" in the sense that Biden is going through documents one-by-one, reading them, and then talking about them.
Biden eventually withdrew from the 2024 presidential race after a disastrous debate performance.
Conservative groups filed their lawsuit in April 2024, and the Department of Justice fought against releasing the tapes for nearly two years, including during the first year of the second Trump administration. The Department argued that such a release would be tantamount to releasing "entries in a personal diary." But in May of this year, the Justice Department reversed course, saying it now intends "to disclose the written transcript and audio recordings."
That prompted Biden to intervene in the lawsuit. His lawyers argued that Biden's privacy interests outweigh the public's interest in hearing the tapes and that multiple laws prevent their release. But two lower courts disagreed, including the U.S. Court of Appeals for the District of Columbia, which refused to grant an injunction that would have blocked the release of the tapes while Biden sought an emergency order from the Supreme Court.
What's more, the appellate court's decision was not along liberal/conservative lines. Ruling against Biden were Chief Judge Sri Srinivasan, an Obama appointee, and Gregory Katsas, a Trump appointee, with Judge Florence Pan, a Biden appointee, in dissent.
Faced with the strong likelihood that the tapes would be released, the Biden team decided to fold its tent, and turn over the tapes and papers to the Heritage Foundation. A Biden source not authorized to speak publicly noted that the Trump Justice Department had abandoned the DOJ's traditional opposition to turning over such material. If private conversations about a book can be obtained by DOJ and turned over to a private, said the source, that is a "dangerous" prescription for how the government can wield its power against individuals.
The Justice Department has not responded to a request for comment.
Biden's decision not to pursue his legal fight further is in sharp contrast to President Trump's take-no-prisoners approach to litigation. Indeed, even as Biden was bowing out of the tapes case, Trump was asking the Supreme Court for a second time to hear his challenge to a jury verdict that requires him to pay E. Jean Carroll $5 million for assaulting her in 1996 and for defaming her after she described the attack in her 2019 memoir. It is extremely rare for the Supreme Court to revisit a case that the justices have already declined to hear. Indeed, the last time the court agreed to hear a case it had previously rejected was in 2018, eight years ago. But unlike Biden, in litigation, Trump never seems to leave a stone unturned.
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