[House Report 118-527]
[From the U.S. Government Publishing Office]


                                                 House Calendar No. 78
                                                  
118th Congress }                                             { Report
                        HOUSE OF REPRESENTATIVES
 2d Session    }                                             { 118-527

====================================================================== 

 
      RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES 
        FIND UNITED STATES ATTORNEY GENERAL MERRICK B. GARLAND IN 
        CONTEMPT OF CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA 
        DULY ISSUED BY THE COMMITTEE ON THE JUDICIARY

                                _______
                                

May 24, 2024.--Referred to the House Calendar and ordered to be printed

                                _______
                                

           Mr. Jordan, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

    The Committee on the Judiciary, having considered this 
Report, reports favorably thereon and recommends that the 
Report be approved.
    The form of the Resolution that the Committee on the 
Judiciary would recommend to the House of Representatives 
citing Merrick B. Garland, Attorney General, U.S. Department of 
Justice, for contempt of Congress pursuant to this Report is as 
follows:
    Resolved, That Merrick B. Garland, Attorney General, U.S. 
Department of Justice, shall be found to be in contempt of 
Congress for failure to comply with a congressional subpoena.
    Resolved, That pursuant to 2 U.S.C. Sec. Sec. 192 and 194, 
the Speaker of the House of Representatives shall certify the 
report of the Committee on the Judiciary, detailing the refusal 
of Merrick B. Garland, Attorney General, U.S. Department of 
Justice, to produce documents, records, and materials to the 
Committee on the Judiciary as directed by subpoena, to the 
United States Attorney for the District of Columbia, to the end 
that Attorney General Merrick B. Garland be proceeded against 
in the manner and form provided by law.
    Resolved, That the Speaker of the House shall otherwise 
take all appropriate action to enforce the subpoena.

                                CONTENTS

                                                                   Page
Executive Summary................................................     2
Authority and Purpose............................................     3
Background on the Investigation..................................     5
The Attorney General's Failure to Produce the Subpoenaed Records 
  Warrants Contempt..............................................    11
Conclusion.......................................................    15
Committee Consideration..........................................    16
Committee Votes..................................................    16
Committee Oversight Findings.....................................    27
New Budget Authority and Tax Expenditures........................    27
Duplication of Federal Programs..................................    27
Performance Goals and Objectives.................................    27
Advisory on Earmarks.............................................    27
Dissenting Views.................................................    27

                           Executive Summary

    In the weeks following the February 5, 2024, release of 
Special Counsel Robert K. Hur's report, the three House 
Committees conducting an impeachment inquiry to determine 
whether to draft articles of impeachment against President 
Joseph R. Biden\1\ engaged with the Department of Justice to 
obtain a limited set of documents and records related to the 
report. After the Department declined to provide the Committees 
with the relevant documents and records, the Committee on the 
Judiciary (``Judiciary Committee'') and the Committee on 
Oversight and Accountability (``Oversight Committee'') issued 
identical subpoenas on February 27, 2024, to Attorney General 
Merrick B. Garland compelling production of four specific 
categories of documents and records, including audio and video 
recordings of Special Counsel Hur's interviews with President 
Biden and his ghostwriter, Mark Zwonitzer.\2\ The Judiciary 
Committee subpoenaed these materials for several reasons--
including to determine whether sufficient grounds exist to 
draft articles of impeachment against President Biden for 
consideration by the full House of Representatives and to 
determine if legislation is needed to codify procedures 
governing the Department's special counsel investigations or to 
strengthen the Department's commitment to impartial justice. To 
date, the Department has refused to produce the audio 
recordings.
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    \1\H.R. Res. 918, 118th Cong. (2023).
    \2\Letter from Rep. Jim Jordan, Chairman. H. Comm. on the 
Judiciary, and Rep. James Comer, Chairman, H. Comm. on Oversight & 
Accountability, to Hon. Merrick B. Garland, Att'y Gen., U.S. Dep't of 
Justice (Feb. 27, 2024) (hereinafter ``Subpoena Letter'').
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    During Special Counsel Hur's investigation, his team 
uncovered evidence that President Biden ``willfully retained 
and disclosed classified materials after his vice presidency 
when he was a private citizen.''\3\ Special Counsel Hur found 
that then-Vice President Biden had ``strong motivations'' to 
flout the rules for properly handling classified materials.\4\ 
In particular, Special Counsel Hur observed that ``months 
before leaving office'' as vice president, President Biden 
decided to write a book for ``an advance of $8 million.''\5\ 
The classified materials retained by President Biden were an 
``invaluable resource that he consulted liberally'' while 
writing his book so that he could give his ghostwriter ``raw 
material . . . detailing meetings and events that would be of 
interest to prospective readers and buyers of his book.''\6\ 
Additionally, Special Counsel Hur observed that President Biden 
viewed the classified materials ``as an irreplaceable 
contemporaneous record of some of the most important moments of 
his vice presidency[,]'' which ``was valuable to him for many 
reasons, including to help defend his record and buttress his 
legacy as a world leader.''\7\ Despite this evidence, Special 
Counsel Hur ultimately concluded that no criminal charges were 
warranted.\8\
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    \3\Report on the Investigation Into Unauthorized Removal, 
Retention, and Disclosure of Classified Documents Discovered at 
Locations Including the Penn Biden Center and the Delaware Private 
Residence of President Joseph R. Biden, Jr., Special Counsel Robert K. 
Hur, U.S. Dep't of Justice at 1 (Feb. 2024) (hereinafter ``Hur 
Report'').
    \4\Id. at 231.
    \5\Id. at 141, 231.
    \6\Id. at 231.
    \7\Id. at 231-32.
    \8\Id. at 345.
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    President Biden has vehemently denied the findings in 
Special Counsel Hur's report and he and his legal team have 
attempted to frame Special Counsel Hur's mention of President 
Biden's poor memory as ``gratuitous.''\9\ Yet during his 
testimony before the Committee, Special Counsel Hur stated 
that, ``[t]he evidence and the President himself put his memory 
squarely at issue.''\10\ In his report, Special Counsel Hur 
noted that, during both his and Zwonitzer's interviews with 
President Biden, the president's ``memory was significantly 
limited,'' and he ``struggle[ed] to remember events and 
strain[ed] at times to read and relay his own 
[handwriting].''\11\ Special Counsel Hur also observed that 
President Biden ``did not remember when he was vice 
president,'' ``for[got] when his [vice presidential] term 
ended,'' and ``did not remember, even within several years, 
when his son Beau died.''\12\
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    \9\Rebecca Beitsch, et al., Special counsel overstepped mandate 
with `gratuitous' Biden slams, say ex-DOJ Dems, The Hill (Feb. 12, 
2024) (```When the inevitable conclusion is that the facts and the 
evidence don't support any charges,' said Ian Sams, a spokesman for the 
White House's special counsel office, `you're left to wonder why this 
report spends time making gratuitous and inappropriate criticisms of 
the president.'''); see Letter from Mr. Richard Sauber, Special Counsel 
to the President, The White House, and Mr. Bob Bauer, Personal Counsel 
to Joseph R. Biden. Jr., to Mr. Bradley Weinsheimer, Assoc. Deputy 
Att'y Gen., U.S. Dep't of Justice at 2-3 (Feb. 12, 2024) (``This is the 
very definition of a derogatory comment''. . . .).
    \10\Hearing on the Report of Special Counsel Robert Hur: Hearing 
Before the H. Comm. on the Judiciary, 118th Cong. 17 (2024) (statement 
of Special Counsel Robert K. Hur, U.S. Dep't of Justice) (hereinafter 
``Hearing on Hur Report'').
    \11\Hur Report, supra note 3, at 207.
    \12\Id. at 207-08.
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    The Department continues to withhold key material 
responsive to the subpoenas from the Judiciary and Oversight 
Committees--specifically the audio recordings of Special 
Counsel Hur's interviews with President Biden and Zwonitzer. 
Its failure to fully comply with the Committees' subpoenas has 
hindered the House's ability to adequately conduct oversight 
over Special Counsel Hur regarding his investigative findings 
and the President's retention and disclosure of classified 
materials and impeded the Committees' impeachment inquiry.

                         Authority and Purpose

    The Constitution vests the House of Representatives with 
the ``sole Power of Impeachment''\13\ and provides that the 
``President, Vice President and all civil Officers of the 
United States, shall be removed from Office on Impeachment for, 
and Conviction of, Treason, Bribery, or other high Crimes and 
Misdemeanors.''\14\ As the U.S. Court of Appeals for the 
District of Columbia Circuit has stated, ``[t]o level the grave 
accusation that a President may have committed `Treason, 
Bribery, or other high Crimes and Misdemeanors,' U.S. Const. 
art. II, Sec. 4, the House must be appropriately 
informed.''\15\ Congress's authority to access information 
during an impeachment investigation is broader in certain 
instances than in a purely legislative investigation,\16\ a 
fact that the executive branch traditionally has 
recognized.\17\ Investigating and collecting all relevant 
evidence is the traditional means by which the House begins an 
impeachment inquiry.\18\ Indeed, conducting an impeachment 
inquiry without all pertinent evidence would be an affront to 
the Constitution and irreparably damage public faith in the 
impeachment process.\19\
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    \13\U.S. Const. art. I, Sec. 2, cl. 5.
    \14\Id. art. II, Sec. 4.
    \15\Comm. on Judiciary of U.S. House of Representatives v. McGahn, 
968 F.3d 755, 765 (D.C. Cir. 2020) (en banc).
    \16\Todd Garvey, Cong. Rsch. Serv.: Legal Sidebar, LSB11083, 
Impeachment Investigations, Part II: Access, at 1 (2023) (``[T]here is 
reason to believe that invocation of the impeachment power could 
improve the committees' legal claims of access to certain types of 
evidence relevant to the allegations of misconduct against President 
Biden.''). See also In re Application of Comm. on Judiciary, 414 F. 
Supp. 3d 129, 176 (D.D.C. 2019) (``[D]enying [the House Judiciary 
Committee] evidence relevant to an impeachment inquiry could pose 
constitutional problems.''), aff'd, 951 F.3d 589 (D.C. Cir. 2020), 
vacated and remanded sub nom. on other grounds, DOJ v. House Comm. on 
the Judiciary, 142 S. Ct. 46 (2021); In re Request for Access to Grand 
Jury Materials, 833 F.2d 1438, 1445 (11th Cir. 1987) (concluding that 
``limit[ing] the investigatory power of the House in impeachment 
proceedings . . . would clearly violate separation of powers 
principles'').
    \17\See Garvey, supra note 16 (``As a historical matter, all three 
branches have suggested that the House possesses a robust right of 
access to information when it is investigating for impeachment 
purposes.''); Jonathan David Schaub, The Executive's Privilege, 70 Duke 
L.J. 1, 87 (2020) (``[P]residents and others have recognized throughout 
the history of the country that their ability to withhold information 
from Congress disappears in the context of impeachment.'').
    \18\See, e.g., H.R. Rep. No. 116-346, at 28 (2019) (``Here, 
consistent with historical practice, the House divided its impeachment 
inquiry into two phases, first collecting evidence and then bringing 
that evidence before the Judiciary Committee for its consideration of 
articles of impeachment.''); H.R. Rep. No. 111-427, at 7 (2010) 
(``[T]he impeachment inquiry was referred by the Committee on the 
Judiciary to a Task Force on Judicial Impeachment . . ., comprised of 
12 Committee Members, to conduct the investigation.''). See also 
Hearing on the Basis for the Impeachment Inquiry of President Joseph R. 
Biden: Before the H. Comm. on Oversight & Accountability, 118th Cong. 
(Sept. 28, 2023) (statement of Jonathan Turley, Professor, The George 
Washington University Law School); Memorandum from Rep. Jim Jordan, 
Chairman, H. Comm. on the Judiciary, Rep. James Comer, Chairman, H. 
Comm. on Oversight & Accountability, and Rep. Jason Smith, Chairman, H. 
Comm. on Ways & Means, to Members of the H. Comm. on the Judiciary, H. 
Comm. on Oversight & Accountability, and H. Comm. on Ways & Means 
(Sept. 27, 2023) (hereinafter ``Sept. 27 Memo'').
    \19\See In re Application of Comm. on Judiciary, 414 F. Supp. 3d at 
176 (``Impeachment based on anything less than all relevant evidence 
would compromise the public's faith in the process.''); In re Request 
for Access to Grand Jury Materials, 833 F.2d at 1445 (``Public 
confidence in a procedure as political and public as impeachment is an 
important consideration justifying disclosure.''); In re Report and 
Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1230 
(D.D.C. 1974) (``It would be difficult to conceive of a more compelling 
need than that of this country for an unswervingly fair [impeachment] 
inquiry based on all the pertinent information.'').
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    On September 27, 2023, pursuant to the directive of the 
Speaker, the Chairs of three House Committees (the Judiciary, 
Oversight, and Ways and Means Committees) released a memorandum 
setting forth the justification for and scope of the inquiry 
into whether sufficient grounds exist to draft articles of 
impeachment against President Biden.\20\ On December 13, 2023, 
the House of Representatives adopted House Resolution 918, 
directing these three Committees to continue the ongoing 
impeachment inquiry.\21\ By approving House Resolution 918, the 
House also adopted House Resolution 917,\22\ which provided 
that ``[t]he authority provided by clause 2(m) of rule XI of 
the Rules of the House of Representatives to the Chairs of the 
Committees . . . included, from the beginning of the existing 
House of Representatives impeachment inquiry . . . and 
continues to include, so long as the impeachment inquiry is 
ongoing, the authority to issue subpoenas on behalf of such 
Committees for the purpose of furthering the impeachment 
inquiry.''\23\
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    \20\Sept. 27 Memo, supra note 18.
    \21\H.R. Res. 918, 118th Cong. (2023).
    \22\H.R. Res. 917, 118th Cong. (2023).
    \23\Id.
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    The subpoenas issued to the Department by the Judiciary and 
Oversight Committees are part of the House's impeachment 
inquiry. As explained in detail below, the requested documents 
and materials are necessary to determine whether sufficient 
grounds exist to draft articles of impeachment against 
President Biden.
    However, the impeachment inquiry is not the only purpose 
underlying the Committee's subpoena; it was also issued 
pursuant to the Committee's authority to conduct legislative 
oversight.\24\ Article I of the Constitution vests in Congress 
a ``broad'' and ``indispensable'' power to conduct oversight 
and investigations that ``encompasses inquiries into the 
administration of existing laws, studies of proposed laws, and 
surveys in our social, economic or political system for the 
purpose of enabling Congress to remedy them.''\25\ Pursuant to 
the Rules of the House of Representatives, the Committee on the 
Judiciary is authorized to conduct oversight of the Department 
and of criminal justice matters in the United States to inform 
potential legislative reforms.\26\
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    \24\See Rules of the U.S. House of Representatives, R. XI, cl. 
2(m)(1) (2023) (providing that ``a committee or subcommittee is 
authorized . . . (B) to require, by subpoena or otherwise, the 
attendance and testimony of such witnesses and the production of such 
books, records, correspondence, memoranda, papers, and documents as it 
considers necessary''); Rules of the H. Comm. on Oversight & 
Accountability, R. 12(g) (``The Chair of the Committee shall . . . 
[a]uthorize and issue subpoenas as provided in House Rule XI, clause 
2(m), in the conduct of any investigation or activity or series of 
investigations or activities within the jurisdiction of the 
Committee.); Rules of the H. Comm. on the Judiciary, R. IV(a) (``A 
subpoena may be authorized and issued by the Chair, in accordance with 
clause 2(m) of rule XI of the House of Representatives, in the conduct 
of any investigation or activity or series of investigations or 
activities within the jurisdiction of the Committee, following 
consultation with the Ranking Minority Member.'').
    \25\Watkins v. United States, 354 U.S. 178, 187, 215 (1957).
    \26\Rules of the U.S. House of Representatives, R. X, cl. 1(l) 
(2023).
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    To further the Committee's constitutionally mandated 
oversight and legislative duties, the Committee must ensure 
compliance with duly authorized congressional subpoenas. The 
information that the Committee requires, and the Department is 
in possession of, is necessary for the Committee to consider 
potential legislative reforms to the Department and its use of 
special counsels to conduct investigations of current and 
former Presidents of the United States. These potential 
legislative reforms may include, among other things, codifying 
certain procedures governing the Department's special counsel 
investigations to better ensure that the Department pursues 
impartial justice. The circumstances of Special Counsel Hur's 
investigative findings and President Biden's public denial of 
these findings demonstrate why such potential legislative 
reforms may be necessary.

                    Background on the Investigation

    According to the report of Special Counsel Robert K. Hur, 
in November 2022, Patrick Moore, one of President Biden's 
personal attorneys, discovered 44 pages of documents 
``classified up to the Top Secret level'' stemming from his 
tenure as Vice President at President Biden's office in 
Washington, D.C., located at the Penn Biden Center.\27\ Moore 
notified his colleague Bob Bauer, who then notified White House 
Counsel Stuart Delery.\28\ The same day, the White House 
Counsel's Office passed the information along to the National 
Archives and Records Administration (NARA), which retrieved the 
documents, and referred the case to the Department and Federal 
Bureau of Investigation (FBI).\29\ Additionally, between 
December 2022 and January 2023, Bauer, Moore, and another Biden 
personal counsel, Jennifer Miller, discovered additional 
classified materials, also from his tenure as Vice President, 
in the garage, basement den, and office of President Biden's 
personal residence in Wilmington, Delaware.\30\ Between January 
and June 2023, FBI agents located additional materials with 
classification markings at the Morris Library and Biden 
Institute at the University of Delaware.\31\
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    \27\Hur Report, supra note 3, at 19 (The classification marks on 
the documents ``dat[ed] back to [President Biden]'s vice presidency'').
    \28\Id.
    \29\Id.
    \30\Id. at 24-25.
    \31\Id. at 28.
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    After receiving notification from NARA of the discovery of 
classified documents at the Penn Biden Center, on November 14, 
2022, Attorney General Garland assigned John Lausch, then the 
U.S. Attorney for the Northern District of Illinois, to lead an 
investigation into President Biden's retention of classified 
materials and ``assess whether the Attorney General should 
appoint a special counsel to investigate the matter.''\32\ 
After further discoveries of classified material at President 
Biden's home and the University of Delaware, Lausch determined 
that the appointment of a special counsel was necessary.\33\
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    \32\Id. at 21.
    \33\Id. at 26.
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    Accordingly, on January 12, 2023, Attorney General Garland 
appointed Robert K. Hur to serve as special counsel to 
investigate whether President Biden unlawfully retained 
classified information when he left office after the vice 
presidency.\34\ During his investigation, Special Counsel Hur 
conducted 173 interviews of 147 witnesses, including President 
Biden himself and his memoir ghostwriter, Mark Zwonitzer.\35\ 
Special Counsel Hur collected over seven million documents, 
including e-mails, text messages, photographs, videos, toll 
records, and other materials from both classified and 
unclassified sources.\36\ On February 8, 2024, Attorney General 
Garland released Special Counsel Hur's 375-page report, which 
concluded that although there was evidence that President Biden 
had ``willfully retained and disclosed classified materials'' 
as a private citizen,\37\ criminal charges were not warranted 
because, among other things, President Biden is an ``elderly 
man with a poor memory.''\38\
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    \34\Id.
    \35\Id.
    \36\Id. at 29.
    \37\Id. at 1.
    \38\Id. at 220.
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    As a part of the Committees' inquiry into whether 
sufficient grounds exist to draft articles of impeachment 
against President Biden, the Committees have sought information 
regarding President Biden's mishandling of classified 
information.\39\ The Committees have sought this information to 
determine whether President Biden willfully retained classified 
information and documents related to, among other places, 
Ukraine to assist his family's business dealings or to enrich 
his family.\40\ Doing so would be an abuse of his office of 
public trust.
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    \39\See Subpoena Letter, supra note 2; Letter from Rep. Jamie 
Comer, Chairman, H. Comm. on Oversight & Accountability; Rep. Jim 
Jordan, Chairman, H. Comm. on the Judiciary; Jason Smith, Chairman, H. 
Comm. on Ways & Means, to Merrick Garland, Att'y Gen., Dep't of Justice 
(Feb. 12, 2024) (hereinafter ``Feb. 12 Letter''); Letter from Rep. 
Jamie Comer, Chairman, H. Comm. on Oversight & Accountability, to 
Robert K. Hur, Special Counsel, Dep't of Justice (Oct. 16, 2023).
    \40\Id.
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    Evidence gathered during the Committees' impeachment 
inquiry raises the prospect that President Biden willfully 
retained classified information relating to his family's 
business dealings in Ukraine. Then-Vice President Biden served 
as the ``point man'' for the Obama Administration's anti-
corruption efforts in Ukraine at the same time that his son, 
Hunter Biden, served on the board of a notoriously corrupt 
Ukrainian energy company.\41\ By 2015, Ukrainian prosecutors 
had opened an ``unlawful enrichment'' investigation into 
Burisma and its owner, Mykola Zlochevsky.\42\ Shortly 
thereafter, Mr. Zlochevsky and other Burisma executives 
approached Hunter Biden, informed him that the investigations 
placed significant pressure on the company, and asked Hunter 
Biden if he could help alleviate such pressure.\43\ Testimony 
provided to the Committees shows that Hunter Biden subsequently 
``called D.C.''\44\ After this phone call, in November and 
December 2015, Vice President Biden purportedly took official 
actions concerning Ukraine--including meeting with Ukrainian 
Prime Minister Arseniy Yatsenyuk--and conditioning the United 
States's $1 billion loan ``to fight corruption'' on the firing 
of Prosecutor General Shokin.\45\ Withholding the loan 
guarantee on this condition was contrary to the overwhelming 
consensus of the Obama Administration.\46\
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    \41\Alan Cullison, Bidens in Ukraine: An Explainer, Wall St. J. 
(Sept. 22, 2019).
    \42\Paul Sonne, et al., The gas tycoon and the vice president's 
son: The story of Hunter Biden's foray into Ukraine, Wash. Post (Sept. 
28, 2019).
    \43\Transcribed Interview of Mr. Devon Archer at 33-34 (July 31, 
2023) (on file with Committee).
    \44\Id. at 36.
    \45\Glenn Kessler, Inside VP Biden's linking of a loan to a Ukraine 
prosecutor's ouster, Wash. Post (Sept. 15, 2023).
    \46\See id. (``On the plane, according to a person who participated 
in the conversation, Biden `called an audible'--he changed the 
plan.'').
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    Special Counsel Hur's report shows that at least two 
documents, identified in the report as ``A9'' and ``A10,'' 
which were made available to the Committees in camera, 
concerned President Biden's 2015 interactions with the 
Ukrainian government.\47\ According to Special Counsel Hur, 
document ``A9'' was ``a [t]elephone [c]all [s]heet setting 
forth the purpose of and talking points for a call with 
Ukrainian Prime Minister Yatsenyuk,'' and document ``A10'' was 
a ``document in the format of a transcript documenting the 
substance of a December 11, 2015[,] call between [Vice 
President] Biden and Ukrainian Prime Minister Yatsenyuk.''\48\ 
Given that Hunter Biden's business dealings in Ukraine were 
still active when Joe Biden left the vice presidency, President 
Biden's retention of these classified documents raises 
questions about whether he purposefully took them when he left 
office in order to benefit his family.
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    \47\Hur Report, supra note 4, at A-2.
    \48\Id.
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    There is also the prospect that President Biden in general 
willfully retained classified documents in order to enrich 
himself and his family. President Biden's 2017 memoir, Promise 
Me, Dad, discussed, among other things, President Biden's 
thoughts on foreign policy.\49\ While working with Zwonitzer on 
his memoir, President Biden read from classified materials 
``verbatim,'' and such classified materials included notes on 
matters of foreign policy, ``meeting notes summariz[ing] the 
actions and views of U.S. military leaders and CIA director 
relating to a foreign country,'' ``notebook entries related to 
many classified meetings, including National Security Council 
meetings, CIA briefings, Department of Defense briefings, and 
other meetings and briefings with foreign policy 
officials.''\50\ Notably, Special Counsel Hur's report found 
that President Biden received an advance of $8 million to 
produce a memoir.\51\ To the extent that President Biden 
willfully took classified information when he left office in 
order to help him write a book and make a large amount of money 
for himself and his family, that could constitute an abuse of 
his office of public trust.
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    \49\See, e.g., id. at 97.
    \50\Id. at 97-106.
    \51\Id.
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    On February 12, 2024, approximately four days after the 
release of Special Counsel Hur's report, the Chairs of the 
Judiciary Committee, the Oversight Committee, and the Committee 
on Ways and Means sent a letter to Attorney General Garland 
requesting four categories of documents and records: (1) all 
documents and communications, including audio and video 
recordings, related to the Special Counsel's interview of 
President Biden; (2) all documents and communications, 
including audio and video recordings, relating to the Special 
Counsel's interview of Zwonitzer; (3) the documents identified 
as ``A9'' and ``A10'' in Appendix A of Special Counsel Hur's 
report, which relate to President Biden's December 11, 2015, 
call with then-Ukrainian Prime Minister Arseniy Yatsenyuk; and 
(4) all communications between or among representatives of the 
Department, including the Office of the Special Counsel, the 
Executive Office of the President, and President Biden's 
personal counsel referring or relating to Special Counsel Hur's 
report.\52\
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    \52\Feb. 12 Letter, supra note 39.
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    On February 16, 2024, the Department responded to the 
Committees' February 12 letter but failed to produce any of the 
requested material--stating, instead, that it was ``working to 
gather and process'' responsive documents.\53\ The Department 
offered no timeframe or commitment for the production of 
requested documents and information.\54\ Accordingly, on 
February 27, 2024, the Judiciary Committee and the Oversight 
Committee issued identical subpoenas to Attorney General 
Garland compelling the production of the four categories of 
materials:
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    \53\Letter from Asst. Attorney Gen. Carlos Felipe Uriarte, U.S. 
Dep't of Justice, to Rep. James Comer, Chairman, H. Comm. on Oversight 
& Accountability, et al. (Feb. 16, 2024).
    \54\Id.
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          1. All documents and communications, including audio 
        and video recordings, related to Special Counsel Robert 
        Hur's interview of President Joseph R. Biden, Jr.;
          2. All documents and communications, including audio 
        and video recordings, related to Special Counsel Hur's 
        interview of Mr. Mark Zwonitzer;
          3. The documents identified as ``A9'' and ``A10'' in 
        Appendix A of Special Counsel Hur's report, which 
        relate to President Biden's December 11, 2015 call with 
        then-Ukrainian Prime Minister Arseniy Yatsenyuk; and
          4. All communications between or among 
        representatives of the Department of Justice, including 
        the Office of the Special Counsel, the Executive Office 
        of the President, and President Biden's personal 
        counsel referring or relating to Special Counsel Hur's 
        report.\55\
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    \55\Subpoena Letter, supra note 2.
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    The subpoenas set a return date of March 7, 2024. On that 
date, the Department produced an incomplete set of documents 
comprising only correspondence exchanged between President 
Biden's legal counsel and the Department, along with an offer 
to review two classified documents in camera.\56\ Two days 
later, the Committees notified the Department that its initial 
production in response to the subpoenas was inadequate.\57\ In 
this letter, the Committees specifically noted that the 
Department had failed to produce unredacted transcripts and 
audio recordings of Special Counsel Hur's interviews of 
President Biden or Zwonitzer.\58\ Because Special Counsel Hur 
was scheduled to testify in front of the Judiciary Committee on 
March 12, 2024, the Committees offered to accept a production 
of all materials responsive to the Committees' subpoenas by 
March 11, 2024, at 3:00 p.m.\59\ The Department failed to 
comply with the Committees' revised deadline,\60\ and instead 
informed the Committees that an ``interagency review'' for 
classified and confidential information was pending.\61\
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    \56\Letter from Hon. Carlos F. Uriarte, Assistant Att'y Gen., 
Office of Legislative Affairs, U.S. Dep't of Justice, to Rep. Jim 
Jordan, Chairman, H. Comm. on the Judiciary (Mar. 7, 2024); Letter from 
Hon. Carlos F. Uriarte, Assistant Att'y Gen., Office of Legislative 
Affairs, U.S. Dep't of Justice, to Rep. James Comer, Chairman, H. Comm. 
on Oversight & Accountability (Mar. 7, 2024); DOJ-HJC-HUR-0000001-
0000032.
    \57\Letter from Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, and Rep. James Comer, Chairman, H. Comm. on Oversight & 
Accountability, to Hon. Merrick B. Garland, Att'y Gen., U.S. Dep't of 
Justice (Mar. 9, 2024) (hereinafter ``Mar. 9 Letter.'').
    \58\Id.
    \59\Id.
    \60\Letter from Hon. Carlos F. Uriarte, Assistant Att'y Gen., 
Office of Legislative Affairs, U.S. Dep't of Justice, to Rep. Jim 
Jordan, Chairman, H. Comm. on the Judiciary (Mar. 12, 2024); Letter 
from Hon. Carlos F. Uriarte, Assistant Att'y Gen., Office of 
Legislative Affairs, U.S. Dep't of Justice, to Rep. James Comer, 
Chairman, H. Comm. on Oversight & Accountability (Mar. 12, 2024) 
(collectively ``March 12 Letters'').
    \61\Letter from Hon. Merrick Garland, Att'y Gen., U.S. Dep't of 
Justice, to Rep. James Comer, Chairman, H. Comm. on Oversight & 
Accountability, Rep. Jim Jordan, Chairman, H. Comm. on the Judiciary, 
and Rep. Jason Smith, Chairman, H. Comm. on Ways and Means at 2 (Feb. 
16, 2024); Email from Office Staff, Office of Legislative Affairs, U.S. 
Dep't of Justice, to Comm. Staff, H. Comm. on the Judiciary (Mar. 11, 
2024, 3:12 p.m.).
---------------------------------------------------------------------------
    On March 12, 2024, a little more than two hours before 
Special Counsel Hur's scheduled testimony in front of the 
Judiciary Committee, the Department produced to the Committees 
two redacted transcripts of Special Counsel Hur's interviews 
with President Biden.\62\ Significantly, the Department failed 
to produce the audio recordings of the interviews. In its 
letter accompanying the two redacted transcripts, which was 
transmitted to the Committees at 7:45 a.m., the Department 
represented to the Committees that it had just completed the 
``standard interagency review process'' earlier that morning, 
thereby allowing the material to be released.\63\ Despite the 
Department's representation, however, it was apparent that 
several news outlets had received and reviewed the transcripts 
before they were produced to the Committees.\64\
---------------------------------------------------------------------------
    \62\Email from Office Staff, Office of Legislative Affairs, Dep't 
of Justice, to Comm. Staff, H. Comm. on the Judiciary (Mar. 12, 2024, 
7:43 a.m.) (hereinafter ``DOJ OLA 7:43 a.m. Email''); Email from Office 
Staff, Office of Legislative Affairs, Dep't of Justice, to Comm. Staff, 
H. Comm. on the Judiciary (Mar. 12, 2024, 7:44 a.m.); Email from Office 
Staff, Office of Legislative Affairs, Dep't of Justice, to Comm. Staff, 
H. Comm. on the Judiciary (Mar. 12, 2024, 7:45 a.m.); DOJ-HJC-HUR-
0000033-0000290.
    \63\March 12 Letters, supra note 60.
    \64\Letter from Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, and Rep. James Comer, Chairman. H. Comm. on Oversight & 
Accountability, to Hon. Merrick B. Garland, Att'y Gen., U.S. Dep't of 
Justice (Apr. 15, 2024) (hereinafter ``Apr. 15 Letter''); DOJ OLA 7:43 
a.m. Email, supra note 53; Mark Swanson, Rep. Jordan to Newsmax: WH Sat 
on Biden-Hur Transcripts, Newsmax (Mar. 12, 2024).
---------------------------------------------------------------------------
    The Committees next wrote to Attorney General Garland on 
March 25, 2024, regarding the Department's continued 
withholding of material responsive to the Committees' 
subpoenas, particularly the audio recordings of Special Counsel 
Hur's interviews with President Biden and the transcripts and 
audio recordings of Special Counsel Hur's interviews with 
Zwonitzer.\65\ The letter again reminded Attorney General 
Garland about the legal obligations imposed upon him by the 
Committees' subpoenas and directed him to produce all 
responsive materials no later than 12:00 p.m. on April 8, 2024 
to avoid further action on this matter, including the 
invocation of contempt of Congress proceedings.\66\
---------------------------------------------------------------------------
    \65\Letter from Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, and Rep. James Comer, Chairman, H. Comm. on Oversight & 
Accountability, to Hon. Merrick B. Garland, Att'y Gen., U.S. Dep't of 
Justice (Mar. 25, 2024).
    \66\Id.
---------------------------------------------------------------------------
    The Department replied on April 8, 2024, but again flouted 
the Committees' subpoenas, choosing instead to produce only the 
transcripts of Special Counsel Hur's two interviews with 
Zwonitzer, but not the audio recordings.\67\ In a letter to the 
Committees, the Department explained why it decided to withhold 
the audio recordings--not because of any applicable legal 
privilege, but instead based on the Department's unfounded 
accusations regarding the Committees' motives and its self-
interested determination that the audio recordings were 
``cumulative'' of other material already produced.\68\ Rather 
than engaging with the Committees and addressing their 
articulated reasons for seeking the audio recordings, the 
Department took it upon itself to dictate to the Committees 
what materials fulfilled the House's informational needs.\69\
---------------------------------------------------------------------------
    \67\Letter from Hon. Carlos F. Uriarte, Assistant Att'y Gen., U.S. 
Dep't of Justice, to Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, and Rep. James Comer, Chairman, H. Comm. on Oversight & 
Accountability (Apr. 8, 2024) (hereinafter ``Apr. 8 Letter''); DOJ-HJC-
HUR-0000291-556.
    \68\Apr. 8 Letter, supra note 67.
    \69\Id.
---------------------------------------------------------------------------
    The Committees addressed the Department's excuses for 
failing to comply with the subpoenas in a subsequent letter to 
Attorney General Garland dated April 15, 2024, writing that his 
response to the subpoenas suggests he is ``withholding records 
for partisan purposes and to avoid political embarrassment for 
President Biden.''\70\ In that letter, the Committees rejected 
the Department's unsupported assertion that the audio 
recordings were ``cumulative,'' explaining how audio recordings 
are materially distinct from written transcripts and reminding 
the Attorney General that federal courts have held that 
Congress requires ``all relevant evidence'' in an impeachment 
inquiry.\71\ The Committees also pointed out that the 
Department has asserted no constitutional or legal privilege 
shielding the disclosure of the audio recordings and that any 
applicable privilege had been waived by the release of the 
written transcripts to the media.\72\ The Committees also 
rejected the Department's unsupported speculation about the 
Committees' motives for obtaining the audio recordings, 
explaining their evidentiary value and highlighting the 
Department's hypocritical insistence on a standard of 
compliance here that it would never allow for a private 
party.\73\ The Committees offered the Department until April 25 
to produce the withheld materials or else they would consider 
invoking contempt of Congress proceedings.\74\
---------------------------------------------------------------------------
    \70\Apr. 15 Letter, supra note 64.
    \71\Id. at 2-3.
    \72\Id. at 3.
    \73\Id.
    \74\Id.
---------------------------------------------------------------------------
    The Department again refused to comply. On April 25, 2024, 
the Department responded to the Committees' letter and argued, 
among other things, that the Committees ``have not articulated 
a legitimate congressional need to obtain audio recordings from 
Mr. Hur's investigation[,]'' and that releasing the audio 
recordings ``would harm law enforcement and the evenhanded 
administration of justice'' because it ``would compound the 
likelihood that future prosecutors will be unable to secure 
th[e] level of cooperation'' that was important to Special 
Counsel Hur's investigation.\75\
---------------------------------------------------------------------------
    \75\Letter from Hon. Carlos F. Uriarte, Assistant Att'y Gen., U.S. 
Dep't of Justice, to Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, and Rep. James Comer, Chairman. H. Comm. on Oversight & 
Accountability (Apr. 25, 2024).
---------------------------------------------------------------------------

     The Attorney General's Failure to Produce the Subpoenaed
                    Records Warrants Contempt

    The Committees have articulated the impeachment and 
legislative purpose for their subpoenas to the Attorney 
General. The Department, at the Attorney General's direction, 
continues to withhold relevant records that have been 
subpoenaed--despite the Committee's repeated attempts to 
explain the valid basis for seeking the records.
    In the two months since the Committees' initial requests to 
the Department, and following the release of Special Counsel 
Hur's report, the Department has produced only five letters 
from President Biden's White House and personal counsel to the 
Department, one letter from the Department to President Biden's 
White House and personal counsel, redacted transcripts of 
Special Counsel Hur's two interviews with President Biden, and 
redacted transcripts of Special Counsel Hur's two interviews 
with Zwonitzer. Additionally, the Department has made available 
two classified documents in camera to the Committees.
    The Department's production of letters and redacted 
transcripts do not relieve it of its obligation to produce all 
responsive records, including the audio recordings of Special 
Counsel Hur's interviews with President Biden and 
Zwonitzer.\76\ During his ``dozens of hours of interviews with 
Zwonitzer,'' President Biden ``read from notebook entries 
related to many classified briefings'' along with ``foreign 
policy issues in Ukraine, Central America, and Iraq. . . 
.''\77\ Further, the boxes of documents discovered in President 
Biden's personal possession included classified materials 
regarding foreign policy issues in, among other places, 
Ukraine, China, Iraq, Afghanistan, Pakistan, and Egypt.\78\ In 
his interviews with Special Counsel Hur, President Biden 
discussed some of these and other foreign policy issues as well 
as the retention and handling of the documents containing some 
of this classified information.\79\ Similarly, Zwonitzer 
discussed President Biden's description and recollection of 
these issues during his interviews with Special Counsel 
Hur.\80\ Although the Department has produced transcripts of 
President Biden's and Zwonitzer's interviews with Special 
Counsel Hur, it has failed to produce the audio recordings of 
the interviews.
---------------------------------------------------------------------------
    \76\Subpoena Letter, supra note 2; Mar. 9 Letter, supra note 57.
    \77\Hur Report, supra note 4, at 97, 106.
    \78\Id. at A-1-22.
    \79\See Recorded Interview Between Special Counsel Robert K. Hur, 
et al., and President Joseph R. Biden. Jr., at 132-36, DOJ-HJC-HUR-
0000164-68 (Oct. 8, 2023); see Recorded Interview Between Special 
Counsel Robert K. Hur, et al., and President Joseph R. Biden, Jr., at 
31-32, 49-54, DOJ-HJC-HUR-0000222-23, 240-45 (Oct. 9, 2023).
    \80\See Recorded Interview Between Special Counsel Robert K. Hur, 
et al., and Mr. Mark Zwonitzer at 123-27, DOJ-HJC-HUR-0000413-17 (July 
31, 2023); see Recorded Interview Between Special Counsel Robert K. 
Hur, et al., and Mr. Mark Zwonitzer at 42-47, DOJ-HJC-HUR-0000518-23 
(Jan. 4, 2024).
---------------------------------------------------------------------------
    The audio recordings of Special Counsel Hur's interviews of 
President Biden and Zwonitzer are of superior evidentiary value 
regarding the specific issues the Committees are investigating. 
While the text of the Department-created transcripts purport to 
reflect the words uttered during these interviews, they do not 
reflect important verbal context, such as tone or tenor, or 
nonverbal context, such as pauses or pace of delivery. For 
instance, when interviewed, a subject's pauses and inflections 
can provide indications of a witness's ability to recall 
events,\81\ or whether the individual is intentionally giving 
evasive or nonresponsive testimony to investigators. The verbal 
nuances in President Biden's answers about his mishandling of 
classified information would assist the Committees' inquiry 
into whether he abused his office of public trust for his 
family's financial gain.
---------------------------------------------------------------------------
    \81\Hur Report, supra note 3, at 6.
---------------------------------------------------------------------------
    This verbal nuance is also important to the Committees' 
legislative oversight investigation. Special Counsel Hur 
concluded that although there was evidence that President 
Biden's conduct satisfied the elements of willfully retaining 
classified information, justice would not be served by 
indicting President Biden because he would appear to a jury to 
be a ``sympathetic, well-meaning elderly man with a poor 
memory.''\82\ President Biden's personal attorneys and the 
White House Counsel's office have contested Special Counsel 
Hur's assessment.\83\ However, Special Counsel Hur stood by his 
assessment during his sworn testimony before the Judiciary 
Committee.\84\ The transcripts provided to the Committee are 
insufficient to arbitrate this dispute as to President Biden's 
mental state, an issue which goes directly to his culpability 
and whether Special Counsel Hur appropriately pursued justice 
by declining to bring an indictment.
---------------------------------------------------------------------------
    \82\Id. at 219.
    \83\Betsy Woodruff Swan, White House lawyers wrote Garland slamming 
Hur's report before its' release, Politico (Feb. 15, 2024).
    \84\Hearing on Hur Report, supra note 10, at 18 (``My assessment in 
the report about the relevance of the President's memory was necessary 
and accurate and fair.'').
---------------------------------------------------------------------------
    This is especially important because while Special Counsel 
Hur declined to bring charges against President Biden, at the 
same time, the Department, through another Special Counsel's 
office, is prosecuting a former President and declared 
candidate for that office for allegedly mishandling classified 
information.\85\ The Committee must assess whether Special 
Counsel Hur's declination decision, which was based on 
President Biden's poor mental state, was consistent with the 
Department's commitment to impartial justice or whether 
legislative reforms are necessary regarding Special Counsel 
investigations because they are not leading to impartial 
outcomes. The transcripts produced by the Department, due to 
their inherent limitations, are not sufficient for that 
purpose.
---------------------------------------------------------------------------
    \85\Katherine Faulders, et al., Timeline: Special counsel's 
investigation into Trump's handling of classified documents, ABC News 
(Apr. 5, 2024).
---------------------------------------------------------------------------
    In short, the audio recordings would offer unique and 
important information to advance the Committees' impeachment 
inquiry and inform the Judiciary Committee as to the need for 
legislative reforms to the operations of the Department or the 
conduct of Special Counsel investigations. Moreover, contrary 
to the Department's assertion that the audio recordings are 
``cumulative'' of the transcripts, an audio recording is the 
best evidence of a witness interview. Where audio recordings 
and transcripts diverge, because of ``inflection in a speaker's 
voice or by inaccuracies in the transcript,'' the audio 
recordings, not the transcripts, control.\86\ Such a divergence 
does occur and, in fact, it occurred very recently with 
President Biden. A video and audio recording taken of President 
Biden's speech on April 24, 2024, reflects him reading a 
teleprompter instruction to pause, saying: ``Imagine what we 
could do next. Four more years, pause.''\87\ However, the 
official White House transcript of that same speech initially 
did not reflect that President Biden uttered the word 
``pause.''\88\ In this case, the video and audio recording is 
the best evidence of the words that President Biden actually 
spoke.
---------------------------------------------------------------------------
    \86\Don Zupanec, Using Transcripts of Recordings as a Demonstrative 
Aid, 23 No. 7 Fed. Litigator 13 (July 2008) (``The tape recording is 
evidence for you to consider. The transcript, however, is not 
evidence.''). See, e.g., United States v. Hogan, No. 2:06-CR-10, 2008 
WL 2074112, at *1 (E.D. Tenn. May 14, 2008) (``[T]his Court will 
instruct the jury as to the limited use of the transcripts, as the 
transcripts are not the evidence but the audio recordings are the 
actual evidence.'').
    \87\See Anders Hagstrom, Biden appears to read script instructions 
out loud in latest teleprompter gaffe: `Four more years, pause,' Fox 
News (Apr. 24, 2024).
    \88\See The White House, Remarks by President Biden at the North 
America's Building Trades Union National Legislative Conference (Apr. 
24, 2024), https://web.archive.org/web/20240425002537/https://
www.whitehouse.gov/brefing-room/speeches-remarks/2024/04/24/remarks-by-
president-biden-at-the-north-americas-building-trades-unions-national-
legislative-conference/ (``Folks, imagine what we can do next. Four . . 
. more years (inaudible).''). The White House subsequently updated the 
transcript after public attention on the omission. The White House, 
Remarks by President Biden at the North America's Building Trades Union 
National Legislative Conference (Apr. 24, 2024), https://
www.whitehouse.gov/briefing-room/speeches-remarks/2024/04/24/remarks-
by-president-biden-at-the-north-americas-building-trades-unions-
national-legislative-conference/.
---------------------------------------------------------------------------
    While the Department has claimed that production of the 
audio recordings of Special Counsel Hur's interviews with 
President Biden and Zwonitzer to the Committees is not 
necessary because ``any information in [the audio] files that 
is relevant to the Committees' stated purposes is cumulative of 
the information'' produced in the provided transcripts, the 
Department's own actions cut against this view.\89\ During 
Watergate, for example, the Department subpoenaed audio 
recordings of conversations between President Nixon and his 
advisors. Although the President publicly released more than 
1,200 pages of edited transcripts of these conversations after 
the subpoena was issued, the Department maintained the subpoena 
for the audio recordings. In United States v. Nixon, the 
Supreme Court rejected President Nixon's attempt to quash that 
subpoena.\90\ The Department has relied upon this decision 
repeatedly in support of its own subpoenas,\91\ and its own 
actions demonstrate that it understands that audio recordings 
are not simply cumulative of transcripts produced by a party 
that is itself under investigation.
---------------------------------------------------------------------------
    \89\Apr. 8 Letter, supra note 67, at 4.
    \90\U.S. v. Nixon, 418 U.S. 683 (1974).
    \91\See, e.g., United States v. Hussain, No. CR 16-462 (CRB), 2018 
WL 6695574 at *2-*3 (Nov. 25, 2018) (citing Nixon in opposition to a 
criminal defendant's motion to quash the Department's subpoena).
---------------------------------------------------------------------------
    On May 16, 2024, a mere two hours before the start of the 
Committee's meeting to consider a resolution holding the 
Attorney General in contempt of Congress, letters from both Mr. 
Edward N. Siskel, Counsel to President Joe Biden, and the 
Justice Department arrived, informing the Committee that the 
President has asserted executive privilege over certain 
documents and materials covered by the subpoena.\92\ The 
Committee has numerous concerns about the validity of this 
assertion, including:
---------------------------------------------------------------------------
    \92\Letter from Mr. Edward N. Siskel, Counsel to the President, to 
Rep. Jim Jordan, Chairman, H. Comm. On the Judiciary, et al. (May 16, 
2024) [hereinafter ``Siskel Letter'']; Letter from Asst. Att'y Gen. 
Carlose Felipe Uriarte, U.S. Dep't of Justice, to Rep. Jim Jordan, 
Chairman, H. Comm. On the Judiciary, and Rep. James Comer, Chairman, H. 
Comm. On Oversight & Accountability (May 16, 2024).
---------------------------------------------------------------------------
          1. The President has waived executive privilege by 
        releasing the contents of his interview with Special 
        Counsel Hur to the media and public on or around March 
        11, 2024;
          2. The assertion of privilege is three months late 
        and, therefore, is not valid. To have been timely, any 
        privilege should have been asserted by March 7, 2024, 
        the subpoena return date; and
          3. Even if the privilege were valid, which is it not, 
        it certainly has been overcome here, as: (i) the 
        Committee has demonstrated a sufficient need for the 
        audio recordings as they are likely to contain evidence 
        important to the Committee's inquiry, and (ii) the 
        audio recordings sought cannot be obtained any other 
        way. The audio recordings are uniquely in the 
        possession of the Justice Department.
    Further, President Biden has already waived any potential 
assertion of executive privilege over the information discussed 
in his interviews with Special Counsel Hur. This conclusion is 
consistent with U.S. v. Mitchell, which rejected a presidential 
claim of privilege over audio recordings involving, as here, 
``portions of subpoenaed recordings which the President has 
caused to be reduced to transcript form and published.''\93\ 
Mitchell concluded that ``the privilege claimed [was] non-
existent since the conversations are . . . no longer 
confidential.''\94\ Moreover, the Justice Department could have 
taken steps to protect the confidentiality of the transcripts, 
but failed to do so when they released them to the press prior 
to providing them to the Committee.
---------------------------------------------------------------------------
    \93\See U.S. v. Mitchell, 377 F. Supp. 1326, 1330 (D.D.C. 1974) 
(citing Nixon v. Sirica, 487 F.2d 700, 718 (D.C. Cir. 1973)).
    \94\See id.
---------------------------------------------------------------------------
    In Mr. Siskel's letter to the Committee, the President did 
not set forth any valid reasons for invoking executive 
privilege. Instead, Mr. Siskel stated that the President ``has 
a duty to safeguard the integrity and independence of Executive 
Branch law enforcement functions and protect them from undue 
partisan influence that could weaken those functions in the 
future.''\95\ Mr. Siskel also stated that ``the Attorney 
General has warned that the disclosure of materials like these 
audio recordings risks harming future law enforcement 
investigations by making it less likely that witnesses in high-
profile investigations will voluntarily cooperate.''\96\ Both 
of these arguments have already been evaluated and overruled by 
the Committee.\97\
---------------------------------------------------------------------------
    \95\Siskel Letter, supra note 92, at 2.
    \96\Id.
    \97\See Letter from Rep. Jim Jordan, Chairman, H. Comm. On the 
Judiciary, et al., to Hon. Merrick B. Garland, Att'y Gen., U.S. Dep't 
of Justice (April 15, 2024).
---------------------------------------------------------------------------
    Without these audio recordings, the Committee's important 
legislative work will continue to be stymied. The audio 
recordings are necessary to evaluate what government reform is 
necessary within the Judice Department to avoid the problems 
uncovered by the investigation in the future.
    The President has now asserted executive privilege. This 
assertion, however, does not change the fact that Attorney 
General Merrick B. Garland is in contempt of Congress today for 
failing to turn over lawfully subpoenaed materials.
    The Constitution does not permit the executive branch to 
dictate to Congress how to proceed with an impeachment inquiry 
or to conduct its oversight.\98\ Rather, ``congressional 
committees have significant discretion in how they approach an 
investigation[,]''\99\ and, in the context of an impeachment 
inquiry, federal courts emphasize that Congress must possess 
all pertinent evidence.\100\ The Committees are engaged in an 
inquiry to assess whether to draft articles of impeachment 
against President Biden, who is the head of the executive 
branch of the federal government. The Committees are under no 
obligation to rely exclusively on transcripts created, refined, 
and produced by executive agencies subordinate to the 
President, especially when, as here, there exists superior 
evidence--audio recordings--that would ensure an accurate and 
complete record of the interviews. The Department's refusal to 
produce the audio recordings amounts to a demand that the 
Committees trust that the Department-curated interview 
transcripts are accurate and complete, despite recent evidence 
of an executive branch entity manipulating a transcript of the 
President's statements and only fixing the error after being 
caught.
---------------------------------------------------------------------------
    \98\See Linda D. Jellum, ``Which Is to be Master,'' the Judiciary 
or the Legislature? When Statutory Directives Violate Separation of 
Powers, 56 UCLA L. REV. 837, 884 (2009) (``Each branch of government 
deserves the autonomy necessary to carry out its functions within the 
constitutional scheme, and each branch should enjoy a protected sphere 
of control over its internal affairs. No branch should be able to 
regulate the inner workings of any other branch. Rather, each branch 
must be master in its own house.'') (cleaned up).
    \99\Todd Garvey, Cong. Rsch. Serv., Committee Discretion in 
Obtaining Witness Testimony 2 (2023).
    \100\See In re Application of Comm. on Judiciary, 414 F. Supp. 3d 
129, 176 (D.D.C. 2019) (``Impeachment based on anything less than all 
relevant evidence would compromise the public's faith in the 
process.''), aff'd, 951 F.3d 589 (D.C. Cir. 2020), vacated and remanded 
sub nom. on other grounds DOJ v. House Comm. on the Judiciary, 142 S. 
Ct. 46 (2021); In re Request for Access to Grand Jury Materials, 833 
F.2d 1438, 1445 (11th Cir. 1987) (``Public confidence in a procedure as 
political and public as impeachment is an important consideration 
justifying disclosure.''); In re Report and Recommendation of June 5, 
1972 Grand Jury, 370 F. Supp. 1219, 1230 (D.D.C. 1974) (``It would be 
difficult to conceive of a more compelling need than that of this 
country for an unswervingly fair [impeachment] inquiry based on all the 
pertinent information.'').
---------------------------------------------------------------------------

                               Conclusion

    Special Counsel Hur's report makes clear, despite its 
conclusion that criminal charges are not warranted, that 
President Biden willfully and unlawfully retained classified 
materials while he was a private citizen. The Committees 
subpoenaed Attorney General Garland to produce documents and 
materials responsive to four specific requests concerning 
Special Counsel Hur's investigation on February 27, 2024. To 
date, despite numerous requests from the Committees for certain 
audio recordings responsive to the subpoena, and a specific 
warning that failure to produce the audio recordings would 
result in contempt proceedings, Attorney General Garland has 
failed to do so. Attorney General Garland's willful refusal to 
comply with the Committees' subpoenas constitutes contempt of 
Congress and warrants referral to the appropriate United States 
Attorney's Office for prosecution as prescribed by law.

                        Committee Consideration

    On May 16, 2024, the Committee met in open session and 
ordered the report favorably reported to the House with an 
amendment in the nature of a substitute by a recorded vote of 
18 to 15, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of House rule XIII, the 
Committee states that the following recorded votes occurred 
during the Committee's consideration of the Report:
          1. Vote on Amendment #1 to the Report ANS offered by 
        Mr. Nadler--failed 8 ayes to 17 nays.
          2. Vote on Amendment #2 to the Report ANS offered by 
        Mr. Johnson--failed 5 ayes to 12 nays.
          3. Vote on Amendment #3 to the Report ANS offered by 
        Ms. Dean--failed 5 ayes to 12 nays.
          4. Vote on Amendment #4 to the Report ANS offered by 
        Mr. Johnson--failed 5 ayes to 12 nays.
          5. Vote on Amendment #5 to the Report ANS offered by 
        Ms. Dean--failed 5 ayes to 12 nays.
          6. Vote on Amendment #6 to the Report ANS offered by 
        Mr. Ivey--failed 8 ayes to 9 nays.
          7. Vote on Amendment #7 to the Report ANS offered by 
        Mr. Swalwell--failed 9 ayes to 12 nays.
          8. Vote on Amendment #8 to the Report ANS offered by 
        Ms. Scanlon--failed 9 ayes to 12 nays.
          9. Vote on Amendment #9 to the Report ANS offered by 
        Mr. Armstrong--passed 15 ayes to 11 nays.
          10. Vote on favorably reporting the Report, as 
        amended--passed 18 ayes to 15 nays. 
        
        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        
                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, are 
incorporated in the descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    The Committee finds the requirements of clause 3(c)(2) of 
rule XIII and section 308(a) of the Congressional Budget Act of 
1974, and the requirements of clause 3(c)(3) of rule XIII and 
section 402 of the Congressional Budget Act of 1974, to be 
inapplicable to this Report. Accordingly, the Committee did not 
request or receive a cost estimate from the Congressional 
Budget Office and makes no findings as to the budgetary impacts 
of this Report or costs incurred to carry out the Report.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House rule XIII, no provision 
of this Report establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House rule XIII, this Report is to enforce the Committee's 
authority to subpoena and obtain testimony related to 
determining whether sufficient grounds exist to impeach 
President Joseph Robinette Biden Jr., and legislative reforms 
to the Department of Justice and its use of a special counsel 
to conduct investigations of current and former Presidents of 
the United States.

                          Advisory on Earmarks

    In accordance with clause 9 of House rule XXI, this Report 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clauses 
9(d), 9(e), or 9(f) of House Rule XXI.

                            Dissenting Views


                            I. Introduction

    The Majority is clearly disappointed that Special Counsel 
Robert Hur declined to bring charges against President Biden, 
the latest blow in a long line of apparent disappointments. 
After spending more than twenty million taxpayer dollars on a 
weaponization subcommittee going nowhere, after conducting 
dozens of witness interviews, and after reviewing millions of 
pages of documents, the Majority has failed to find even a 
shred of evidence of wrongdoing by the President. Their 
impeachment investigation fizzled out before they could even 
clearly articulate a charge. A total lack of policy 
accomplishments only compounds their obvious frustration as we 
approach the last months of this do-nothing Republican 
Congress.
    Against this backdrop of failure, the Majority makes one, 
last-ditch effort to make it look at least like a member of 
President Biden's cabinet did something wrong. To be clear, the 
contempt citation the Majority recommends against U.S. Attorney 
General Merrick Garland is an absolute farce.
    The Attorney General and the Department of Justice have 
provided the Committee with all the information it requires to 
conduct any legitimate oversight activity. The only discrepancy 
between what the Majority requested and what the Department has 
produced is a set of audio files--recordings of the interviews 
the Special Counsel conducted with President Biden and his 
ghost writer. The Majority has never demonstrated a legitimate 
reason for obtaining these audio files and certainly cannot 
justify a contempt citation on this ground alone.
    For a start, the Department of Justice has long since 
produced written transcripts of these interviews. The 
Department has also expressed serious and legitimate concern 
that releasing the audio files would have a chilling effect on 
high-profile witnesses in future criminal investigations. To 
that end, the President, in consultation with the Attorney 
General, has claimed Executive Privilege over the remaining 
audio files.
    It seems painfully obvious that the Majority wants these 
recordings because they hope to find something they can use to 
embarrass President Biden. They have certainly amplified 
manipulated audio and video evidence for political purposes in 
the past. The only surprise is that--after so many of their 
members have admitted that their single motivation is to 
provide political cover for Donald Trump--the Majority still 
feels the need to hide behind a half-hearted interest in 
``vocal tone, pace, inflections, verbal nuance, and other 
idiosyncrasies.'' What a sham.
    This contempt proceeding is a political stunt and nothing 
more. It should be roundly defeated.

                             II. Background

    On January 12, 2023, Attorney General Merrick Garland 
appointed Robert Hur, formerly the Trump-appointed U.S. 
Attorney for the District of Maryland, as Special Counsel 
charged with investigating President Biden's handling of 
classified documents.\1\ Hur focused on five categories of 
documents: (1) documents related to Afghanistan, in particular 
a handwritten memo from then-Vice President Biden to President 
Obama dated November 28, 2009, detailing his concerns about 
deploying additional troops to the country;\2\ (2) personal 
notebooks from the President's time as Vice President;\3\ (3) 
certain documents found at the Penn Biden Center, including 
documents related to negotiations about the Iran nuclear 
deal;\4\ (4) documents found at the University of Delaware 
dating to the President's time as a senator;\5\ and (5) other 
documents found in the President's Delaware home, including 
briefing binders from trips that the President took while he 
was vice president.\6\ Over the course of Hur's 15-month probe, 
his investigators conducted 173 interviews of 147 witnesses and 
reviewed more than seven million documents. Hur submitted his 
345-page final report to Attorney General Garland on February 
5, 2024, and Garland publicly released it in full on February 
8, 2024.
---------------------------------------------------------------------------
    \1\Press Release, Appointment of Robert K. Hur as Special Counsel, 
U.S. Dep't of Justice (Jan. 12, 2023), https://www.justice.gov/d9/2023-
01/Order.Appointment%20of%20Robert%20
Hur.11223%20%28002%29.pdf.
    \2\Special Counsel Robert K. Hur, Report on the Investigation Into 
Unauthorized Removal, Retention, and Disclosure of Classified Documents 
Discovered at Locations Including the Penn Biden Center and the 
Delaware Private Residence of President Joseph R. Biden, Jr., U.S. 
Dep't of Justice at 145-48 (Feb. 8, 2024), https://www.justice.gov/
storage/report-from-special-counsel-robert-k-hur-february-2024.pdf 
[Hereinafter Hur Report].
    \3\Id. at 2-3.
    \4\Id. at 256-311.
    \5\Id. at 312-25.
    \6\Id. at 326-33.
---------------------------------------------------------------------------
    The Hur Report exonerates President Biden of any 
prosecutable charges. Specifically, to be charged with the 
unauthorized retention of national defense information under 
the Espionage Act, the government must show that ``(1) the 
defendant had unauthorized possession of a document, writing or 
note; (2) the document, writing, or note related to the 
national defense; and (3) the defendant willfully retained the 
document, writing, or note and failed to deliver it to an 
employee or officer entitled to receive it.''\7\ Hur found that 
there was no evidence that the President willfully retained 
classified information. He also found that the President likely 
did not know certain information was classified and that he 
likely believed he was permitted to retain certain documents as 
personal records. Hur's report also distinguished Biden's 
conduct from that of President Trump.\8\
---------------------------------------------------------------------------
    \7\Id. at 178 (citation omitted).
    \8\Id. at 10-11, 250.
---------------------------------------------------------------------------
    On February 7, 2024, the Attorney General notified the 
Committee that Special Counsel Hur had concluded his 
investigation.\9\ The following day, the Attorney General 
produced the entire unredacted report to Congress and made it 
available to the public.\10\ Four days later, Chairman Jordan, 
along with House Oversight Chairman James Comer, and House Ways 
& Means Chairman Jason Smith wrote to the Attorney General and 
demanded that he produce to the Committees:
---------------------------------------------------------------------------
    \9\Letter from the Hon. Merrick B. Garland, Att'y Gen., to the Hon. 
Jim Jordan, Chairman, H. Comm. on the Judiciary, et al. (Feb. 7, 2024).
    \10\See Letter from the Hon. Merrick B. Garland, Att'y Gen., to the 
Hon. Jim Jordan, Chairman, H. Comm. on the Judiciary, et al. (Feb. 8, 
2024).
---------------------------------------------------------------------------
          1. All documents and communications, including audio 
        and video recordings, related to the Special Counsel's 
        interview of President Biden;
          2. All documents and communications, including audio 
        and video recordings, related to the Special Counsel's 
        interview of Mark Zwonitzer;
          3. The documents identified as ``A9'' and ``A10'' in 
        Appendix A of Mr. Hur's report, which relate to 
        President Biden's December 11, 2015 call with then-
        Ukrainian Prime Minister Arseniy Yatsenyuk; and
          4. All communications between or among 
        representatives of the Department of Justice, including 
        the Office of the Special Counsel, the Executive Office 
        of the President, and President Biden's personal 
        counsel referring or relating to Mr. Hur's report.\11\
---------------------------------------------------------------------------
    \11\Letter from the Hon. James Comer, Chairman, H. Comm. on 
Oversight & Accountability, et al. to the Hon. Merrick Garland, Att'y 
Gen. (Feb. 12, 2024).
---------------------------------------------------------------------------
    On February 16, 2024, the Department of Justice responded 
noting that ``[s]everal of the materials listed in your 
February 12 letter require review for classification and 
protection of national defense information'' and informed the 
Members that ``the Department will conduct a review to assess 
confidentiality interests and will share materials with 
Executive Branch entities with equities in the content of the 
materials to determine whether those other entities will assert 
any confidentiality interests of their own.''\12\
---------------------------------------------------------------------------
    \12\Letter from Carlos Felip Uriarte, Asst. Att'y Gen., to the Hon. 
James Comer, Chairman, H. Comm. on Oversight & Accountability, et al. 
(Feb. 16, 2024).
---------------------------------------------------------------------------
    On February 27, 2024, the Chairmen Jordan and Comer 
responded to the DOJ by issuing a subpoena for the requested 
documents, claiming that the Department ``offered no timeframe 
by which it expected to make productions'' or ``any commitment 
that it would produce all of the material requested.''\13\
---------------------------------------------------------------------------
    \13\Letter from the Hon. James Comer, Chairman, H. Comm. on 
Oversight & Accountability, & the Hon. Jim Jordan, Chairman, H. Comm. 
on the Judiciary, to the Hon. Merrick B. Garland, Att'y Gen. (Feb. 27, 
2024), https://judiciary.house.gov/sites/evo-subsites/republicans-
judiciary.
house.gov/files/evo-media-document/2024-02-
27%20JDJ%20to%20DOJ%20re%20subpoena.pdf.
---------------------------------------------------------------------------
    The DOJ responded to the subpoena on March 7, 2024, with 
two productions requested by the Committees: (1) the documents 
identified as ``A9'' and ``A10'' in Appendix A of the Hur 
Report, and (2) communications between the DOJ and the 
Executive Office of the President or President Biden's personal 
counsel related to Special Counsel Hur's report.\14\ The DOJ 
also expressed disappointment that the Committee chose to serve 
a subpoena ``less than three weeks after Mr. Hur's report was 
transmitted to Congress and only seven business days after the 
Department made clear it was working expeditiously to respond 
in good faith to congressional requests'' and said that the 
subpoena was ``premature and unnecessary given the amount of 
information the committee has already received and the 
Department's proactive efforts to prepare for responding to 
congressional requests on this matter.''\15\
---------------------------------------------------------------------------
    \14\ See Letter from Carlos Felip Uriarte, Asst. Att'y Gen., to the 
Hon. Jim Jordan, Chairman, H. Comm. on the Judiciary (Mar. 7, 2024).
    \15\Id. at 2.
---------------------------------------------------------------------------
    On March 9, 2024, the Chairmen Jordan and Comer wrote yet 
another letter to the Attorney General claiming that the DOJ 
had yet to fully comply with their subpoenas.\16\ On March 12, 
before Special Counsel Hur was set to testify before the 
Judiciary Committee, the DOJ produced the transcripts of 
Special Counsel Hur's interview of President Biden.\17\
---------------------------------------------------------------------------
    \16\Letter from the Hon. James Comer, Chairman, H. Comm. on 
Oversight & Accountability, & the Hon. Jim Jordan, Chairman, H. Comm. 
on the Judiciary, to the Hon. Merrick B. Garland, Att'y Gen. (Mar. 9, 
2024).
    \17\See Letter from Carlos Felip Uriarte, Asst. Att'y Gen., to the 
Hon. Jim Jordan, Chairman, H. Comm. on the Judiciary (Mar. 12, 2024).
---------------------------------------------------------------------------
    On March 25, 2024, Chairmen Jordan and Comer once again 
notified the DOJ that their compliance with the subpoena was 
deficient and requested that the Department provide audio 
recordings of Special Counsel Hur's interview of President 
Biden and transcripts and audio recordings of Special Counsel 
Hur's interview of President Biden's ghostwriter, Mark 
Zwonitzer.\18\
---------------------------------------------------------------------------
    \18\Letter from the Hon. James Comer, Chairman, H. Comm. on 
Oversight & Accountability, & the Hon. Jim Jordan, Chairman, H. Comm. 
on the Judiciary, to the Hon. Merrick B. Garland, Att'y Gen. (Mar. 25, 
2024).
---------------------------------------------------------------------------
    On April 8, 2024, the DOJ provided the transcripts of 
Special Counsel Hur's interviews of ghostwriter Mark Zwonitzer, 
which took place on July 31, 2023 and January 4, 2024.\19\ The 
DOJ's cover letter notes that the Committees have responded to 
the Department's productions with ``escalation and threats of 
criminal contempt.''\20\ Further, the DOJ wrote, ``We are 
therefore concerned that the Committees are disappointed not 
because you didn't receive information, but because you did. We 
urge the Committees to avoid conflict rather than seek 
it.''\21\ The Committees responded on April 15, 2024, claiming 
that the DOJ's ``response to the subpoenas remains inadequate, 
suggesting that you are withholding records for partisan 
purposes and to avoid political embarrassment for President 
Biden.''\22\
---------------------------------------------------------------------------
    \19\See Letter from Carlos Felip Uriarte, Asst. Att'y Gen., to the 
Hon. Jim Jordan, Chairman, H. Comm. on the Judiciary & the Hon. James 
Comer, Chairman, H. Comm. on Oversight & Accountability (Apr. 8, 2024).
    \20\Letter from Carlos Felip Uriarte, Asst. Att'y Gen., to the Hon. 
Jim Jordan, Chairman, H. Comm. on the Judiciary & the Hon. James Comer, 
Chairman, H. Comm. on Oversight & Accountability at 1 (Apr. 8, 2024).
    \21\Id.
    \22\Letter from the Hon. James Comer, Chairman, H. Comm. on 
Oversight & Accountability, & the Hon. Jim Jordan, Chairman, H. Comm. 
on the Judiciary, to the Hon. Merrick B. Garland, Att'y Gen. at 1 (Apr. 
15, 2024).
---------------------------------------------------------------------------
    On May 16, 2024, the Department responded again to the 
Committee's requests, including the February 27, 2024, 
subpoena, to inform the Committees ``that the President has 
asserted executive privilege over the requested audio 
recordings and is making a protective assertion of privilege 
over any remaining materials responsive to the subpoenas that 
have not already been produced.''\23\ In an accompanying 
letter, the Attorney General explained that the Department has 
a vested interest in protecting ``materials related to a closed 
criminal investigation where disclosure is likely to damage 
future law enforcement efforts,'' which ``is the case 
here.''\24\ The Attorney General further expressed concern that 
producing audio recordings to the Committees ``would raise an 
unacceptable risk of undermining the Department's ability to 
conduct similar high-profile criminal investigations--in 
particular, investigations where the voluntary cooperation of 
White House officials is exceedingly important.''\25\ Further, 
the Attorney General explained that the Committees' 
``articulated need for the audio recordings is insufficient to 
meet any potentially applicable standard,'' and that the audio 
recordings will ``not reveal any information relevant to the 
Committees' stated needs that is not available in the 
transcripts and other documents that are already in the 
Committees' possession.''\26\ The Attorney General requested 
that the President make a protective assertion of executive 
privilege.\27\
---------------------------------------------------------------------------
    \23\Letter from Hon. Carlos F. Uriarte, Assistant Att'y Gen., U.S. 
Dep't of Justice, to Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, and Rep. James Comer, Chairman, H. Comm. on Oversight & 
Accountability at 1 (May 16, 2024).
    \24\Letter from the Hon. Merrick B. Garland, Att'y Gen. to The 
President at 1 (May 15, 2024).
    \25\Id. at 3-4.
    \26\Id. at 3, 9.
    \27\Id. at 11.
---------------------------------------------------------------------------
    On May 16, 2024, the White House also wrote to the 
Committees explaining that ``the President's longstanding 
commitment to protecting the integrity, effectiveness, and 
independence of the Department of Justice and its law 
enforcement investigations'' caused his assertion of executive 
privilege.\28\ The White House noted the obvious partisan 
motivations behind the Committees' actions, writing, ``[t]he 
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.''\29\
---------------------------------------------------------------------------
    \28\Letter from Edward N. Siskel, Counsel to the President, to Rep. 
Jim Jordan, Chairman, H. Comm. on the Judiciary, and Rep. James Comer, 
Chairman, H. Comm. on Oversight & Accountability at 1 (May 16, 2024).
    \29\Id. at 2.
---------------------------------------------------------------------------

                             III. Concerns


            A. THE MAJORITY MISREPRESENTS THE FACTUAL RECORD

    As a threshold matter, the Majority severely misrepresents 
the record throughout its report in numerous material respects. 
It is undisputed that Republican-appointed Special Counsel Hur 
exonerated President Biden. Hur found insufficient evidence to 
prove beyond a reasonable doubt that President Biden willfully 
retained any of the classified documents, and in some cases 
that the documents themselves were not even classified. The 
Majority's shameful portrayal of President Biden as senile or 
``incompetent'' is also false and not supported by the special 
counsel's own record. President Biden's age was not a material 
aspect of Hur's decision to decline prosecution, contrary to 
assertions by members of the Majority. Finally, the report 
ignores clear historical context provided by the special 
counsel regarding President Biden's retention and use of his 
notebook, which other Presidents have done.

1. President Biden was Cleared from any Criminal Charges

    Special Counsel Hur focused on five categories of documents 
in the investigation: (1) documents related to Afghanistan, in 
particular a handwritten memo from then-Vice President Biden to 
President Obama dated November 28, 2009, detailing his concerns 
about deploying additional troops to the country;\30\ (2) 
personal notebooks from the President's time as Vice 
President;\31\ (3) certain documents found at the Penn Biden 
Center, including documents related to negotiations about the 
Iran nuclear deal;\32\ (4) documents found at the University of 
Delaware dating to the President's time as a senator;\33\ and 
(5) other documents found in the President's Delaware home, 
including briefing binders from trips that the President took 
while he was vice president.\34\ With respect to each category 
of documents, Hur found that there was no evidence that the 
President willfully retained any classified information, and in 
some cases found that the information was not actually 
classified.
---------------------------------------------------------------------------
    \30\Id. at 145-148.
    \31\Id. at 2-3.
    \32\Id. at 256-311.
    \33\Id. at 312-325.
    \34\Id. at 326-333.
---------------------------------------------------------------------------
            a. Afghanistan Documents
    After leaving the vice presidency in 2017, now-President 
Biden retained folders of documents related to the 2009 troop 
surge in Afghanistan, including a handwritten memo he drafted 
opposing the surge and documents supporting that position. Hur 
determined that ``the evidence falls short of establishing . . 
. beyond a reasonable doubt'' that Biden willfully retained 
these classified documents.\35\
---------------------------------------------------------------------------
    \35\Id. at 204.
---------------------------------------------------------------------------
    During a February 16, 2017, recorded interview with the 
ghostwriter for his book, Promise Me, Biden said that he had 
just found classified material ``downstairs,'' and the context 
indicated that those documents might relate to foreign policy 
in Afghanistan.\36\ At the time of the interview, Biden was in 
a rental home in Virginia. The FBI ultimately recovered the 
Afghanistan documents from Biden's Delaware residence in 2022, 
while Biden was the sitting president and thus authorized to 
have classified documents in his residence. Special Counsel Hur 
determined that because Biden was permitted to have classified 
documents in his residence in 2022, the only possible charges 
related to the Afghanistan documents would have had to have 
come from Biden willfully possessing them in Virginia in 2017.
---------------------------------------------------------------------------
    \36\Id. at 108.
---------------------------------------------------------------------------
    Hur concluded that he could not prove that Biden willfully 
possessed these documents:
          (1) Biden could have found the classified documents 
        in Virginia in 2017 and forgotten them soon after, 
        because finding classified documents so soon after 
        leaving the vice presidency ``may not have been 
        something he found memorable. Mr. Biden, after all, had 
        seen classified documents nearly every day for the 
        previous eight years.''\37\
---------------------------------------------------------------------------
    \37\Id. at 205.
---------------------------------------------------------------------------
          (2) There was ``no definitive evidence'' that the 
        classified Afghanistan documents were stored in Biden's 
        Virginia home.\38\ Specifically, Hur determined that 
        other than the ghostwriter recording, there was ``no 
        witness, photo, text message, or other evidence [that] 
        establishes that the documents were ever stored in 
        Virginia.''\39\
---------------------------------------------------------------------------
    \38\Id. at 211.
    \39\Id.
---------------------------------------------------------------------------
          (3) Biden might have been referring to a folder 
        containing documents which were marked classified in 
        2009, but ``there are serious questions about whether 
        those particular documents remain sensitive today, or 
        when Mr. Biden met with [the ghostwriter] in 
        2017.''\40\ With respect to the handwritten memo in 
        particular, Hur noted that Biden ``said he did not 
        consider the memo classified when he discussed it with 
        his ghostwriter,'' and that ``the memo concerned 
        deliberations from more than seven years earlier about 
        the Afghanistan troop surge, and in the intervening 
        years those deliberations had been widely discussed in 
        public, so Mr. Biden could have reasonably expected 
        that the memo's contents became less sensitive over 
        time.''\41\
---------------------------------------------------------------------------
    \40\Id. at 216.
    \41\Id. at 221.
---------------------------------------------------------------------------
    Hur also noted that it would be difficult for prosecutors 
to win a case based on the Afghanistan documents because it 
could be hard to prove that ``the documents still contain 
sensitive national defense information'' and because at trial 
he would present credibly to a jury.
            b. President Biden's Personal Notebooks
    As vice president, Biden regularly took handwritten notes 
in notebooks during briefings, including during classified 
briefings.\42\ After leaving office, he kept these notebooks 
with him at his residence.\43\ Hur determined that he would not 
be able to prove beyond a reasonable doubt that Biden willfully 
retained the classified information in the notebooks.
---------------------------------------------------------------------------
    \42\Id. at 53.
    \43\Id.
---------------------------------------------------------------------------
    Specifically, Hur found that Biden ``thought his notebooks 
were his personal property and that he was allowed to take them 
home after his vice presidency, even if they contained 
classified information.'' Hur noted that Biden ``was emphatic, 
declaring that his notebooks are `my property,' and that `every 
president before me has done the exact same thing.'''\44\ Hur 
noted that ``at least one former president,'' Ronald Reagan, 
``and the Department of Justice also have concluded that a 
former president may keep handwritten notes even if they 
contain classified information.''\45\ As a result, ``[m]ost 
jurors would likely find this precedent and Mr. Biden's claimed 
reliance on it . . . to be compelling evidence that Mr. Biden 
did not act willfully.''\46\
---------------------------------------------------------------------------
    \44\Id. at 232.
    \45\Id. at 239.
    \46\Id. at 240-41.
---------------------------------------------------------------------------
            c. Penn Biden Center Documents, University of Delaware 
                    Documents, and other Documents Found in Biden's 
                    Residence
    The FBI also recovered marked classified documents from 
Biden's time as vice president at the Penn Biden Center and in 
his Delaware residence, and documents from Biden's time as 
senator in papers at the University of Delaware. In each case, 
the special counsel determined that Biden did not willfully 
retain the documents and that they were likely brought to their 
respective locations by mistake.\47\ In reaching these 
conclusions, the special counsel referred to ``the numerous 
previous instances in which marked classified documents have 
been discovered intermixed with the personal papers of former 
Executive Branch officials and members of Congress.''\48\
---------------------------------------------------------------------------
    \47\Id. at 12.
    \48\Id.
---------------------------------------------------------------------------

2. President Biden was in Command and the Record Does Not Support the 
        Majority's Accusation of Memory or Age-Related Issues

    The Majority has doubled down on its partisan strategy to 
portray and attack President Biden as being elderly or having 
memory issues based on superfluous dicta in the report. The 
Majority has, for example, repeatedly accused President Biden 
of not being able to recall the date of his son Beau's death. 
To be clear, Special Counsel Hur's reference to President 
Biden's age and memory was not only wildly inappropriate, but 
it was unsupported by the actual record. The transcript of Mr. 
Biden's interview clearly shows he did recall the date. In the 
interview transcripts, President Biden clearly recalled the 
date of his son's death, saying: ``what month did Beau die? Oh 
God, May 30.''\49\ The special counsel's decision to make this 
deeply personal and emotional response from the President part 
of his report was completely out of bounds and wrong. The 
Majority's effort to exploit this response for partisan 
political gain is dishonest and shameful.
---------------------------------------------------------------------------
    \49\Interview with President Joseph R. Biden, Jr. at Day 1, p. 82 
(October 8, 2023) (on file with Committee).
---------------------------------------------------------------------------
    The transcript shows that President Biden was in clear 
command of his cognitive functions and that he was able to 
recall items with specific detail during 5 hours of interview 
when an international crisis was unfolding in the Middle 
East.\50\ In fact, Special Counsel Hur himself remarked that 
the president had a ``photographic understanding and recall'' 
in response to certain questions.\51\ President Biden was also 
able to provide detailed and vivid responses regarding events 
that occurred over 15 years ago including detailed discussions 
of debates regarding Afghanistan policy.\52\ He was able to 
provide detailed descriptions of how the Naval Observatory was 
laid out and his office.\53\ He was able to provide detailed 
explanations of the layout of his Wilmington home.\54\ Hur 
observed: ``[W]e expect the evidence of Mr. Biden's state of 
mind to be compelling,'' pointing to his ``clear, forceful 
testimony.''\55\
---------------------------------------------------------------------------
    \50\The day of the interview, October 8, 2023, was the day after 
the horrific and deadly Hamas-led attack on Israel. Mr. Hur at the 
beginning of the interview remarked: ``. . . Well Mr. President, I do 
want to take an additional minute and thank you for being here and 
making this time for us. I know there's a lot of other things in the 
world going on that demand your attention.'' Id. at Day 1, p. 3. 
President Biden subsequently acknowledged that he had ``just got off 
the phone with Bibi Netanyahu.'' Id.
    \51\Id. at Day 1, pp. 47, 92.
    \52\Id. at Day 2, pp. 18-19, 49-50.
    \53\Id. at Day 1, pp. 31-32, 32-33.
    \54\Id. at Day 1, pp. 42-45.
    \55\Hur Rept. supra at 233.
---------------------------------------------------------------------------

3. The Majority's Accusations Regarding President Biden's Notebooks 
        Ignore the Clear Findings and Historical Context as Described 
        in the Hur Report

    The Majority's report repeatedly references the executive 
summary of Special Counsel Hur's report, which claims that the 
investigation ``uncovered evidence that Biden willfully 
retained and disclosed classified materials after his vice 
presidency when he was a private citizen'' including 
``notebooks containing Mr. Biden's handwritten entries about 
issues of national security and foreign policy.''\56\ However, 
the Majority ignores Hur's determination that the evidence 
would not ``meet the government's burden at trial, particularly 
the requirement to prove that Mr. Biden intended to do 
something the law forbids.''\57\
---------------------------------------------------------------------------
    \56\Id. at 1.
    \57\Id. at 8.
---------------------------------------------------------------------------
    Hur's investigation clearly shows that President Biden 
``believed he was allowed to keep the notebooks in his 
home''\58\ and explains that ``this view finds some support in 
historical practice.''\59\ According to Hur's report, ``the 
clearest example is President Reagan, who left the White House 
in 1989 with eight years' worth of handwritten diaries, which 
he appears to have kept at his California home even though they 
contained Top Secret information.''\60\
---------------------------------------------------------------------------
    \58\Id.
    \59\Id. at 9.
    \60\Id.
---------------------------------------------------------------------------
    Like President Biden's notebooks, Reagan's diaries were 
used as a source for several books and were read aloud in the 
den of his home after leaving office. According to Hur's 
report, Reagan's diaries ``served as sources for at least three 
publications that Mr. Reagan or his representatives authorized: 
(1) An American Life, Mr. Reagan's autobiography published in 
1990; (2) Dutch, a biography authored by Edmund Morris and 
published in 1999; and (3) The Reagan Diaries, a collection of 
the diaries themselves first published in 2007 after Mr. 
Reagan's death.''\61\ Hur's report also acknowledges that An 
American Life includes ``dozens of verbatim quotations from Mr. 
Reagan's diaries''\62\ and acknowledges that ``[f]or several 
years after their return to California, the Reagans would often 
sit together in their den after dinner, reading aloud from 
their diaries and reminiscing about their White House 
years.''\63\
---------------------------------------------------------------------------
    \61\Id. at 197.
    \62\Id.
    \63\Id. at 196; See also: Ronald Reagan, THE REAGAN DIARIES x 
(Douglas Brinkley ed., First Harper Perennial ed. 2009).
---------------------------------------------------------------------------

4. The Majority Falsely Alleges that President Biden's Age was a 
        Material Reason for Special Counsel's Exoneration

    The Majority's Report falsely claims that the special 
counsel found President Biden to have met the elements of a 
crime, but that justice would not be served because of his age 
and memory.\64\ During the committee markup, Members even 
peddled blatant falsehoods that the special counsel found 
President Trump ``incompetent'' to stand trial.\65\ Nowhere in 
the report did Special Counsel Hur write anything even close to 
these false accusations. As explained above, Special Counsel 
Hur exonerated President Biden for each of the categories of 
documents for reasons because there lacked evidence beyond a 
reasonable doubt that he had willfully retained any classified 
documents. President Biden's memory is not an element of any 
crime that Special Counsel Hur was charged with investigating.
---------------------------------------------------------------------------
    \64\See, e.g., Garland Contempt Report at 13.
    \65\For example, Rep. Van Drew stated at the May 7, 2024 Committee 
Markup: ``Because if our commander-in-chief is so incompetent that he 
cannot stand trial, he is not fit to stand trial, then he is too 
incompetent, for God's sake, to be the leader of the most powerful 
nation on the face of the earth.'' Rep. Nehls stated: ``I want 
everybody to understand we're either saying that our current President 
is cognitively impaired, incompetent, unable to stand trial even though 
he broke the law.'' Rep. Bentz commented: ``It just seems to me that 
Mr. Hur was saying that we don't exonerate. What we are going to do is 
say that, that the President is an older gentleman who is incompetent, 
and we don't think we can get a conviction. Therefore, we are not going 
to prosecute.''
---------------------------------------------------------------------------

 B. THE MAJORITY HAS NOT ARTICULATED A LEGITIMATE BASIS TO OVERCOME A 
    VALID ASSERTION OF EXECUTIVE PRIVILEGE TO PROTECT SENSITIVE LAW 
    ENFORCEMENT MATERIALS

    As more fully explained in the Attorney General's May 15, 
2024 letter to the Committees, the President has affirmatively 
asserted Executive Privilege over the audio recording of the 
special counsel's interviews. The Attorney General explained 
that producing those recordings ``would raise an unacceptable 
risk of undermining the Department's ability to conduct similar 
high-profile criminal investigations--in particular, 
investigations where the voluntary cooperation of White House 
officials is exceedingly important.''\66\ When Executive 
Privilege is invoked, Congress, a separate and co-equal branch 
of government, must overcome the privilege by demonstrating a 
legitimate need.\67\
---------------------------------------------------------------------------
    \66\Letter from Att'y Gen. Garland to Committees, supra n. 24 at 3.
    \67\As described in the letter from the Attorney General, the 
Committees did not meet any of the potential applicable standards to 
overcome an assertion of Executive Privilege. See id. at 7, n. 2.
---------------------------------------------------------------------------
    The Majority has offered no valid explanation for why it 
needs these audio recordings, particularly when it has received 
copies of transcripts for both interviews. The Majority's main 
argument is that the recordings are of ``superior evidentiary 
value regarding the specific issues the Committees are 
investigating.''\68\ While Republicans acknowledge possession 
of the transcripts, they complain that those documents ``do not 
reflect important verbal context, such as tone or tenor, or 
nonverbal context, such as pauses or pace of delivery.''\69\ 
The Majority's Report explains:
---------------------------------------------------------------------------
    \68\Id. at 12.
    \69\Id. 12-13 (citation omitted).

          For instance, when interviewed, a subject's pauses 
        and inflections can provide indications of a witness's 
        ability to recall events, or whether the individual is 
        intentionally giving evasive or nonresponsive testimony 
        to investigators. The verbal nuances in President 
        Biden's answers about his mishandling of classified 
        information would assist the Committee's inquiry into 
        whether he abused his office of public trust for his 
        family's financial gain.\70\`
---------------------------------------------------------------------------
    \70\Id. at 12-13.

    These strained arguments are part of the Majority's 
continuing efforts to rewrite Special Counsel Hur's report and 
have nothing to do with any legitimate purpose. Notably, Hur 
personally attended and conducted the interview with President 
Biden, and evaluated each of these elements himself before 
determining that President Biden could not be charged with a 
crime. By contrast, Congress is not a law enforcement agency, 
and there is no legitimate reason why Members of Congress would 
need to evaluate ``tone or tenor, or nonverbal context'' to 
second guess Special Counsel Hur's exercise of prosecutorial 
discretion. Moreover, producing the audio files risks having a 
chilling effect on future witnesses' willingness to participate 
in voluntary interviews and/or to be recorded.\71\
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    \71\Letter from Carlos Felip Uriarte, Asst. Att'y Gen., to the Hon. 
Jim Jordan, Chairman, H. Comm. on the Judiciary & the Hon. James Comer, 
Chairman, H. Comm. on Oversight & Accountability at 4-5 (Apr. 8, 2024); 
Letter from Att'y Gen. Garland to Committees, supra n. 24 at 3.
---------------------------------------------------------------------------
    Likewise, the Majority claims that they need access to the 
audio files as part of their ``impeachment inquiry.''\72\ But 
as Special Counsel Hur notes in his report, the laws on 
handling classified material do not apply to a sitting 
president or vice president.\73\ Accordingly, even if Hur had 
determined that there was criminal conduct at issue here--which 
he did not--it would have pertained to the time before Biden 
was elected president. As perennial Republican witness and 
legal scholar Jonathan Turley noted when he testified before 
the House Oversight Committee last year:
---------------------------------------------------------------------------
    \72\E.g., Garland Contempt Report at 13.
    \73\Hur Report supra n. 2, at 15.

          The use of pre-office conduct [in impeachment 
        proceedings] remains controversial and should be 
        approached with great circumspection and abundant 
        caution. Absent continuing misconduct in office, even 
        criminal acts that occur in private life should not be 
        the subject of an inquiry. If that were the case, the 
        House could launch investigations for any crime 
        committed by an individual as a private citizen before 
        taking office. It would convert impeachment into a 
        rationalization for subjecting officials to limitless 
        inquiries.\74\
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    \74\The Basis for an Impeachment Inquiry of President Joseph R. 
Biden, Jr.: Hearing Before the H. Comm. on Oversight Accountability, 
118th Cong. (Sep. 28, 2023) (written statement of Jonathan Turley at 
31), https://docs.house.gov/meetings/GO/GO00/20230928/116415/HHRG-118-
GO00-Wstate-TurleyP-20230928.pdf.

    The Majority incorrectly cites Supreme Court case United 
States v. Nixon as precedent for their demand that DOJ hand 
them audio recordings that they already have transcripts for. 
The Nixon case is a starkly different scenario and not on point 
to the matter of contempt before this Committee. In Nixon, the 
dispute was over whether a special prosecutor, pursuant to Rule 
17(c) of the Federal Rules of Criminal Procedure, was able to 
defeat a Motion to Quash of a Grand Jury subpoena seeking tape 
recordings and documents relating to the President's 
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conversations with aides and advisers. The Court held:

          We conclude that when the ground for asserting 
        privilege as to subpoenaed materials sought for use in 
        a criminal trial is based only on the generalized 
        interest in confidentiality, it cannot prevail over the 
        fundamental demands of due process of law in the fair 
        administration of criminal justice. The generalized 
        assertion of privilege must yield to the demonstrated, 
        specific need for evidence in a pending criminal 
        trial.\75\
---------------------------------------------------------------------------
    \75\United States v. Nixon, 418 U.S. 683, 713 (U.S. 1974).

    Here, Congress is not investigating or prosecuting a 
criminal case pursuant to Rule 17(c) of the Federal Rules. 
Moreover, the tapes in Nixon memorialized the actual commission 
of a crime. Eighteen and a half minutes of those tapes were 
deleted, meaning that eighteen and a half minutes of a crime 
were not available to investigators. By contrast, the files the 
Majority seeks are of interviews conducted by the Special 
Counsel. Transcripts of the interviews have already been 
produced and there are no allegations that any portions of the 
interviews have been deleted.
    Perhaps more fatal to their claim, the Majority has also 
been unable to articulate exactly how the audio files would aid 
any of their so-called stated purposes of inquiry. For example, 
the Majority has generally claimed it desires to ascertain 
whether President Biden ``willfully retained classified 
information and documents . . . to assist his family's business 
dealings or to enrich his family'' or whether there were any 
scope limitations placed on the interviews by the attorneys. 
Seemingly absent is any explanation for how important ``verbal 
context'' such as ``tone or tenor, or nonverbal context, such 
as pauses or pace of delivery'' would provide the Majority with 
any information not otherwise available in the transcript or 
other sources.
    The Majority has also charged that it is interested in 
determining whether there should be reforms to the special 
counsel regulations to ensure impartial justice or whether 
there should be policy changes regarding the return of 
presidential documents. Again, there is no explanation for how 
the ``tone or tenor, or nonverbal context, such as pauses or 
pace of delivery'' would assist the Committees in either of 
these policy determinations. Moreover, the Majority was able to 
secure the entire unredacted transcript of the special counsel 
report, 5 hours of testimony by the special counsel himself, 
and all the additional information requested (including 
transcripts of the interview). Finally, the Majority suggests 
it needs to ensure the accuracy of the transcript. The 
transcript was prepared by the special counsel's office for 
criminal proceedings where accuracy was of paramount 
importance. The Majority has no reason to believe that 
inaccuracies exist between the audio and transcribed versions.

                               C. WAIVER

    The Majority also wrongly claims that the Executive Branch 
waived its ability to claim privilege by producing the 
transcript of Special Counsel Hur's interviews with President 
Biden and Mr. Zwonitzer. As the Attorney General explained in 
his letter to the President, ``audio recordings have distinct 
features and law enforcement uses, which implicate privacy 
interests and risks of misuse to a greater degree than 
transcripts, and disclosure to Congress of the recordings would 
have a chilling effect on future cooperation in similar 
investigations.''\76\
---------------------------------------------------------------------------
    \76\Letter from the Hon. Merrick B. Garland, Att'y Gen. to The 
President, supra n. 24, at 7.
---------------------------------------------------------------------------
    Finally, the Majority discounts that the Department has 
released transcripts in good faith as part of the 
accommodations practice. The Attorney General has expressed 
concern that finding waiver here would ``incentivize less 
Executive Branch cooperation and broader privilege 
assertions.''\77\ The Minority is similarly concerned that a 
finding of waiver here risks seriously damaging the 
accommodation process going forward.
---------------------------------------------------------------------------
    \77\Id.
---------------------------------------------------------------------------

D. THE DEPARTMENT PROVIDED THE MAJORITY ALL THE INFORMATION IT ASKED 
   FOR--THE TRUE INTENTION OF THE MAJORITY IN SEEKING THE AUDIO IS TO
   AID DONALD TRUMP

    As established above, the Majority's justifications for 
overcoming the claim of privilege are both pretextual and 
insufficient. In reality, the Department took extraordinary 
measures to provide the Majority with all the information it 
asked for. Within two days of Special Counsel Hur's submitted 
report, the Department released an unredacted copy to Congress. 
Shortly thereafter, the Department also agreed to allow Mr. Hur 
to testify before the Committee, which he did for over five 
hours at a March 12, 2024, hearing. In response to the 
Majority's Subpoena, the Department: (1) made available the 
classified documents listed as A9 and A10 in the appendix of 
the report; (2) provided communications between the Department 
and the Executive Office of the President and President Biden's 
personal counsel regarding Special Counsel Hur's report; (3) 
produced the transcripts of President Biden's voluntary 
interview with Special Counsel Hur; and (4) produced the 
transcripts of Mr. Zwonitzer's voluntary interviews with 
Special Counsel Hur.
    The Majority is truly interested in the audio recordings 
because they believe it will provide them with an opportunity 
to embarrass President Joe Biden in the months leading up to an 
election--a justification which falls far short of the 
Executive Branch interests expressed by the White House and the 
Attorney General.
    The Majority's unwillingness to respect these interests is 
particularly ironic when members of the Majority, including the 
Chairman himself, have previously protested similar invasions 
of presidential privacy. Notably, Chairman Jordan expressed 
``grave concern'' about protecting President Trump's privacy 
when Congress issued a subpoena to Mazars for his tax records. 
Specifically, in an April 15, 2019 Memorandum, the Chairman, 
then serving as Ranking Member of the House Oversight and 
Government Reform Committee, wrote:

          I have concerns that if Chairman Cummings obtains 
        highly sensitive, personal information about the 
        President's finances, he will selectively release the 
        information publicly in a misleading fashion to create 
        a false narrative for partisan political gain.\78\
---------------------------------------------------------------------------
    \78\Republican Staff Memorandum, Chairman Cummings's Unprecedented 
Subpoena of Mazars USA LLP, H. Comm. on Oversight and Reform (April 15, 
2019), https://oversight.house.gov/wp-content/uploads/2019/04/2019-04-
15-JDJ-to-EEC-re-Mazars-Subpoena.pdf.

    Mr. Jordan proceeded to argue that the ``partisan'' request 
for Mr. Trump's tax records was not a responsible use of the 
---------------------------------------------------------------------------
Committee's oversight power. He argued:

          The Supreme Court has cautioned that Congress does 
        not have `general authority to expose the private 
        affairs of individuals without justification in terms 
        of the functions of the Congress.'''\79\ He also added, 
        ``Quite simply, Chairman Cummings seems to be seeking 
        this sensitive, personal information in a pursuit to 
        satisfy his preconceived and unsupported 
        conclusions.\80\
---------------------------------------------------------------------------
    \79\Id. (citing Watkins v. United States, 354 U.S. 178, 187 (1957).
    \80\Id.

---------------------------------------------------------------------------
    Later in that same Memorandum, he stated:

          The Democrat obsession with the President and his 
        family is gravely dangerous and counterproductive to 
        the work of our Committee. The American people can now 
        see that Democrats' pursuit of the truth is clouded by 
        their obsession with attacking the President and the 
        First Family. None of our actions would be necessary if 
        not for Chairman Cummings's decision to pursue 
        reckless, partisan investigations designed to attack 
        the President and his family.\81\
---------------------------------------------------------------------------
    \81\Id.

    Moreover, while the Majority has argued that the Committee 
needs audio files from the Department because they ``are the 
best evidence of witness interviews,'' the Majority has refused 
to release even basic transcripts to the American people from 
nearly all the 120 transcribed interviews the Committee has 
taken to date. The Majority has also refused to provide audio 
and video copies of the transcribed interviews to the Minority. 
The reason is self-evident--the Majority does not care about 
the ``best evidence'' of a witness interview when it might 
contradict or disprove its cherry-picked and manipulated 
Committee reports or out-of-context sound bites leaked to the 
media for partisan political gain.

                             E. AMENDMENTS

    During the markup of this report, various amendments were 
offered to correct or provide context to the highly partisan 
language of the report, which were all defeated on party lines.
    I offered an amendment to reflect the assertion of 
Executive Privilege by the President based on his substantial 
interest in protecting sensitive law enforcement investigation 
files.
    Representative Johnson (D-GA) introduced an amendment 
highlighting disturbing public gaffes by Republican 
presidential candidate Donald Trump, which draw serious 
concerns about his mental competency. Because the Majority has 
fixated on their so-called need to evaluate President Biden's 
age and memory, it is only appropriate to juxtapose President 
Trump at a recent rally praising a fictional character from the 
film Silence of the Lambs: ``The late, great Hannibal Lecter, 
he's such a wonderful man.'' The record should be clear that 
the Majority's report does not appear to be concerned when a 
presidential candidate shows serious signs of cognitive 
impairment if his name is Donald Trump.
    Representative Dean (D-PA) offered an amendment to 
demonstrate the Majority's proclivity to push false narratives 
to malign their perceived political enemies with the assistance 
of manipulated audio. The Amendment pointed out that this is 
the true reason for the Majority's fervent actions to obtain 
the audio tape and not because they are legitimately interested 
in the President's ``vocal tone, pace, inflections, verbal 
nuance, and other idiosyncrasies.'' The Amendment also pointed 
out the devastating effects of these shameful tactics, by 
telling the story of Ms. Nina Jankowicz, who appeared for a 
deposition before the committee last year.\82\ Years earlier, 
Ms. Jankowicz had participated in an hour-long roundtable in 
which she was asked about a nascent Twitter program through 
which users could add context to misleading tweets. In the full 
video, she explained what the program was and criticized it. 
After Ms. Jankowicz was appointed to a position at DHS, the 
Chairman retweeted a sliced-and-diced one minute clip of her 
comments which made it sound like she endorsed the program and 
mocked President Trump's Twitter followers. In reality, she did 
neither of these things. But the Chairman tweeted this video 
with, quote, ``1984'' as the sole caption, a reference to 
George Orwell's novel. The Chairman's tweet was subsequently 
amplified by others, and Ms. Jankowicz faced serious threats, 
including death threats hurled at her while she was in her 
third trimester of pregnancy.\83\
---------------------------------------------------------------------------
    \82\Deposition of Nina Jankowicz (Apr. 10, 2023), https://
judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/
files/evo-media-document/Jankowicz%20Transcript_Redacted.pdf.
    \83\Id.; Heidi Przybyla, `A surreal experience': Former Biden 
`disinfo' chief details harassment, Politico (Mar. 8, 2023), https://
www.politico.com/news/2023/03/08/former-biden-disinfo-chief-details-
harassment-00085981.
---------------------------------------------------------------------------
    Representative Johnson offered an amendment showing that 
MAGA Republicans have spent $20 million on a committee 
investigating conspiracy theories that has yielded nothing. 
This is true despite holding 10 hearings before the Select 
Weaponization of the Federal Government--six of which have been 
on the same topic--120 transcribed depositions and depositions, 
555 hours of staff and witness time in these transcribed 
interviews and depositions, more than 60 subpoenas to executive 
branch agencies and private entities, and the solicitation of 
over 3,000,000 pages of documents from agencies and private 
entities. Even after all this activity, MAGA Republicans have 
failed in its efforts to find any impeachable offense committed 
by President Biden or misconduct in his administration. This 
has not stopped right wing media, however, from excoriating the 
Committee for not doing enough this Congress. This Amendment 
was offered to add context and accuracy to the report by adding 
additional backdrop about this protracted and over the top 
investigation.
    Representative Dean offered an amendment proving that 
President Biden did in fact remember the date of his son Beau's 
death during the interview with Special Counsel Hur. This 
amendment sought to set the record straight and point out that 
Hur's remarks on that exchange were inaccurate, grotesque, and 
gratuitous. The Majority's efforts to repeat that 
mischaracterization for political ends is even more 
distasteful.
    Representative Ivey (D-MD) introduced an amendment to 
provide factual accuracy to the record regarding the stark 
differences between former President Trump's criminal 
mishandling of documents versus the circumstances that led to a 
special counsel investigation into President Biden. Special 
Counsel Hur noted there were material distinctions between the 
two scenarios. Hur noted there are ``serious aggravating 
facts'' in the Trump case.\84\ ``Most notably, after being 
given multiple chances to return classified documents and avoid 
prosecution, Mr. Trump allegedly did the opposite. According to 
the indictment, he not only refused to return the documents for 
many months, but he also obstructed justice by enlisting others 
to destroy evidence and then to lie about it.''\85\ ``In 
contrast, Mr. Biden turned in classified documents to the 
National Archives and the Department of Justice, consented to 
the search of multiple locations including his homes, sat for a 
voluntary interview, and in other ways cooperated with the 
investigation.''\86\ The amendment was offered to illustrate 
that, unlike President Biden, Donald Trump intentionally and 
flagrantly took and concealed highly classified documents. Mr. 
Trump's actions are extremely serious and warrant the 32 counts 
of Willful Retention of National Defense Information, 
Conspiracy to Obstruct Justice, and Making False Statements 
brought against him. The Majority's efforts to conflate the two 
cases is morally bankrupt and dishonest. It is, in fact, the 
Majority that seeks to discredit and undermine the fair 
administration of justice.
---------------------------------------------------------------------------
    \84\Hur Report, supra n. 2, at 11.
    \85\Id.
    \86\Id.
---------------------------------------------------------------------------
    Representative Swalwell (D-CA) introduced an amendment 
stating that no Member may be permitted to hold any other 
person in contempt of congress unless they themselves have 
provided the testimony that has been required of them regarding 
their participation in the planning and execution of the events 
that took place at the Capitol on January 6, 2021. The purpose 
of the Amendment was to show the irony that at least two 
committee members of Majority have been asked to comply with a 
subpoena related to January 6.
    Representative Scanlon (D-PA) introduced an amendment 
pointing out that the Majority has no legitimate purpose in 
furthering their impeachment inquiry because impeachment is not 
available. As Special Counsel Hur noted specifically in his 
report, the laws on handling classified material do not apply 
to a sitting president or vice president. Accordingly, even if 
Hur had determined that there was criminal conduct at issue 
here--which he did not--it would have pertained to the time 
before Biden was elected president. The Majority's perennial 
witness and legal scholar Jonathan Turley confirmed when he 
testified before the House Oversight Committee last year that 
``even criminal acts that occur in private life should not be 
the subject of an impeachment.''

                                            Jerrold Nadler,
                                                    Ranking Member.

                                  [all]