[House Report 118-628]
[From the U.S. Government Publishing Office]


                                               House Calendar No. 87

118th Congress}                                              {REPORT

   2d Session }        HOUSE OF REPRESENTATIVES	            {118-628  

======================================================================
 
  RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND MARK 
ZWONITZER IN CONTEMPT OF CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA 
             DULY ISSUED BY THE COMMITTEE ON THE JUDICIARY

                                _______
                                

   August 9, 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 Mark Zwonitzer for contempt of Congress pursuant to this 
Report is as follows:
    Resolved, That Mark Zwonitzer 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 Mark Zwonitzer 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 Mark Zwonitzer 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............................................     4
Background on the Investigation..................................     4
Zwonitzer's Failure to Produce the Subpoenaed Records Warrants 
  Contempt.......................................................    10
Conclusion.......................................................    17
Committee Consideration..........................................    17
Committee Votes..................................................    17
Committee Oversight Findings.....................................    25
New Budget Authority and Tax Expenditures........................    25
Duplication of Federal Programs..................................    25
Performance Goals and Objectives.................................    25
Advisory on Earmarks.............................................    25
Dissenting Views.................................................    25

                           Executive Summary

    In the weeks following the February 5, 2024, release of 
Special Counsel Robert K. Hur's report, the Committee on the 
Judiciary (the ``Committee''), engaged with Mark Zwonitzer to 
obtain a limited set of documents and records related to 
Special Counsel Hur's report.\1\ Zwonitzer served as the 
ghostwriter for President Joe Biden's memoirs and Special 
Counsel Hur's report revealed that Zwonitzer possessed records 
that would inform potential legislative reforms. After 
Zwonitzer declined to provide the relevant documents and 
records, the Committee issued a subpoena on March 22, 2024, to 
Zwonitzer compelling the production of six specific categories 
of documents and records, including audio recordings and 
transcripts of his interviews with President Joe Biden relating 
to his ghostwriting work on the President's memoirs, Promise 
Me, Dad and Promises to Keep.\2\ The Committee subpoenaed these 
materials for several reasons--including to determine if 
legislation is needed to codify procedures governing clear 
statutory guidelines related to the handling, storage, and 
disclosure of classified materials or modify criminal penalties 
for the unauthorized dissemination and disclosure of classified 
materials. To date, Zwonitzer has refused to produce any of the 
requested documents or materials.
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    \1\Letter from Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, to Mr. Mark Zwonitzer (Feb. 14, 2024) (requesting six narrow 
categories of documents and materials relating to Zwonitzer's 
ghostwriting work on President Biden's memoirs).
    \2\Letter from Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, to Mr. Mark Zwonitzer (Mar. 22, 2024) (enclosing subpoena 
compelling six narrow categories of documents and materials relating to 
Zwonitzer's ghostwriting work on President Biden's memoirs) 
(hereinafter ``Zwonitzer 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 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''\5\ as vice president, President Biden decided 
to write a book for ``an advance of $8 million.''\6\ The 
classified materials retained by President Biden were an 
``invaluable resource that he consulted liberally'' while 
writing his book so that he could give Zwonitzer ``raw material 
. . . detailing meetings and events that would be of interest 
to prospective readers and buyers of his book.''\7\ 
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.''\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 8, 231.
    \5\Id. at 231.
    \6\Id. at 141.
    \7\Id. at 231.
    \8\Id. at 231-32.
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    As Special Counsel Hur acknowledged, ``during his dozens of 
hours of interviews with Zwonitzer, [President] Biden read from 
notebook entries relating to many classified meetings, 
including National Security Council meetings, CIA briefings, 
Department of Defense briefings, and other meetings and 
briefings with foreign policy officials.''\9\ Special Counsel 
Hur also found that President Biden even ``showed part of [his 
classified] handwritten [notes] to Zwonitzer[,]'' and warned 
him that ``[s]ome of this may be classified, so be 
careful.''\10\ Despite this evidence, Special Counsel Hur 
ultimately decided not to pursue charges against President 
Biden.\11\ Additionally, during his investigation, Special 
Counsel Hur noted that, ``[a]t some point after learning of 
[the Special Counsel's] appointment . . . Zwonitzer[] deleted 
digital audio recordings of his conversations with [President] 
Biden during the writing of [the President's memoir], Promise 
Me, Dad.''\12\ According to Special Counsel Hur, the recordings 
``had significant evidentiary value.''\13\ However, ``Zwonitzer 
turned over his laptop computer and external hard drive and 
gave consent for investigators to search the devices[]'' and 
``FBI technicians were able to recover [the] deleted 
recordings.''\14\ Because Zwonitzer cooperated with 
investigators, ``preserved the transcripts and produced them to 
investigators[,]'' and ``later produced the devices on which 
the recordings had been stored and consented to a search of 
those devices[,]'' Special Counsel Hur declined to bring 
charges for obstruction of justice against Zwonitzer.\15\
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    \9\Id. at 106.
    \10\Id.
    \11\Id. at 345.
    \12\Id. at 334.
    \13\Id.
    \14\Id.
    \15\Id. at 343.
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    President Biden has vehemently denied some of 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.''\16\ 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.''\17\ 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].''\18\ Special Counsel Hur also observed that 
President Biden ``did not remember when he was vice 
president,'' ``did not remember when he was vice president,'' 
and ``did not remember, even within several years, when his son 
Beau died.''\19\
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    \16\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. . . .'').
    \17\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'').
    \18\Hur Report, supra note 3, at 207.
    \19\Id.. at 208.
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    Zwonitzer continues to withhold all documents and materials 
in his possession that are responsive to the subpoena from the 
Committee. The materials requested from Zwonitzer are crucial 
for the Committee's understanding of the manner and extent of 
President Biden's mishandling and unlawful disclosure of 
classified materials, as well as Zwonitzer's use, storage, and 
deletion of classified materials on his computer. Zwonitzer's 
failure to fully comply with the Committee's subpoena has 
hindered the Committee's ability to adequately conduct 
oversight of Special Counsel Hur's investigative findings, the 
Justice Department's commitment to impartial justice, and the 
President's retention and disclosure of classified materials.

                         Authority and Purpose

    Article I of the Constitution vests in Congress a ``broad'' 
and ``indispensable'' power to conduct oversight and 
investigations that ``encompasses inquiries concerning the 
administration of existing laws as well as proposed or possibly 
needed statutes[,]'' and ``includes surveys of defects in our 
social, economic or political system for the purpose of 
enabling Congress to remedy them.''\20\ The Supreme Court has 
noted that without such power, Congress would not be able to 
``legislate wisely or effectively.''\21\ Courts recognize that 
``this power of inquiry--with the process to enforce it--is an 
essential and appropriate auxiliary to the legislative 
function.''\22\ Pursuant to the Rules of the House of 
Representatives, the Committee is authorized to conduct 
oversight of the Department of Justice and of criminal justice 
matters in the United States to inform potential legislative 
reforms.\23\
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    \20\Watkins v. United States, 354 U.S. 178, 187, 215 (1957).
    \21\McGrain v. Daughtery, 273 U.S. 135, 175 (1927).
    \22\Id.. at 174 (emphasis added).
    \23\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, it must ensure compliance 
with duly authorized congressional subpoenas. The information 
that the Committee requires, and Zwonitzer 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, changing certain 
procedures governing the Department's special counsel 
investigations to better ensure that the Department pursues 
impartial justice. The Committee may also consider legislative 
reforms governing criminal penalties for destroying evidence--
especially when that evidence includes classified information 
that was disclosed in an unauthorized manner. The circumstances 
of Special Counsel Hur's investigative 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.\24\ Moore 
notified his colleague Bob Bauer, who then notified White House 
Counsel Stuart Delery.\25\ 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).\26\ 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.\27\ 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.\28\
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    \24\Hur Report, supra note 3, at 19-20 (The classification marks on 
the documents ``dat[ed] back to [President Biden]'s vice presidency'').
    \25\Id.
    \26\Id.
    \27\Id. at 24-25.
    \28\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.''\29\ 
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.\30\
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    \29\Id. at 21.
    \30\Id. at 26.
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    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.\31\ 
During his investigation, Special Counsel Hur conducted 173 
interviews of 147 witnesses, including President Biden himself 
and his memoir ghostwriter, Mark Zwonitzer.\32\ 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.\33\ 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,''\34\ criminal charges were not warranted 
because, among other things, President Biden is an ``elderly 
man with a poor memory.''\35\
---------------------------------------------------------------------------
    \31\Id.; Attorney General Merrick B. Garland Delivers Remarks on 
the Appointment of a Special Counsel, U.S. Dep't of Justice (Jan, 12, 
2023).
    \32\Hur Report, supra note 3, at 26.
    \33\Id. at 29.
    \34\Id. at 1.
    \35\Id. at 6, 219.
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    Special Counsel Hur found that President Biden ``had strong 
motivations to ignore the proper procedures for safeguarding 
the classified information in his notebooks. He decided months 
before leaving office to write a book and began meeting with 
his ghostwriter while still vice president.''\36\ Notably, 
Special Counsel Hur's report found that President Biden 
received an advance of $8 million to produce a memoir.\37\ 
President Biden's 2017 memoir, Promise Me, Dad, discussed, 
among other things, President Biden's thoughts on foreign 
policy.\38\ While working with Zwonitzer on this memoir, 
Special Counsel Hur's report noted that President Biden read 
from classified materials ``verbatim,'' and such classified 
materials included notes regarding ``the President's Daily 
Brief[,]'' ``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.''\39\
---------------------------------------------------------------------------
    \36\Id. at 231.
    \37\Id. at 97-106.
    \38\See, e.g., id. at 97.
    \39\Id. at 97-106.
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    Apparently, in two instances, on February 16, and April 10, 
2017, after he was no longer vice president, President Biden 
met with Zwonitzer and ``read from notes [then-Vice President 
Biden] took during a meeting in the Situation Room in the 
summer of 2015, which was attended by senior military 
officials, the CIA Director, and others.''\40\ These notes 
``summarized the actions and views of U.S. military leaders and 
the CIA Director relating to a foreign country and a foreign 
terrorist organization.''\41\ According to Special Counsel 
Hur's report, during the February 16, 2017, meeting, President 
Biden read to Zwonitzer ``portions [of the notes] containing 
information that remain classified up to the Secret 
level.''\42\ During the April 10, 2017, meeting, President 
Biden ``returned to the same notebook entry detailing the same 
Situation Room meeting'' and ``read additional portions of the 
entry nearly verbatim, including the portions of the entry he 
read to Zwonitzer during the February 16, 2017[,] 
meeting.''\43\ Special Counsel Hur determined that these 
passages also ``contain information that remains classified up 
to the Secret level.''\44\
---------------------------------------------------------------------------
    \40\Id. at 102-04.
    \41\Id. at 104.
    \42\Id.
    \43\Id. at 104-5.
    \44\Id.
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    Additionally, as Special Counsel Hur's report noted, ``[i]n 
a later recorded conversation with Zwonitzer on April 24, 2017, 
[President] Biden read from a different notebook entry, this 
time from notes he took during a National Security Council 
meeting in the Situation Room in November 2014.''\45\ According 
to Special Counsel Hur, President Biden ``read aloud'' to 
Zwonitzer ``from notes summarizing a range of issues relating 
to a foreign terrorist organization, including specific 
activities of the U.S. military and views expressed by the 
intelligence community, including the Director of National 
Intelligence and the CIA Director.''\46\ Special Counsel Hur 
found that ``[w]hile reading these notes, [President] Biden 
struggled to read his handwriting, and he showed part of the 
handwritten passage to Zwonitzer.''\47\ While showing the 
passage to Zwonitzer, President Biden stated, ``[s]ome of this 
may be classified, so be careful.''\48\ Nevertheless, Special 
Counsel Hur determined that President Biden ``continued to read 
nearly verbatim from portions of his notes[,]'' some of which 
``remain[] classified at the Secret level.''\49\
---------------------------------------------------------------------------
    \45\Id.
    \46\Id. at 105-06.
    \47\Id. at 106.
    \48\Id.
    \49\Id.
---------------------------------------------------------------------------
    Furthermore, on February 16, 2017, during one of his 
meetings with Zwonitzer, President Biden ``told Zwonitzer he 
had sent President Obama a 40-page, handwritten memo arguing 
against the deployment of additional troops in Afghanistan `on 
the grounds that it wouldn't matter.'''\50\ At that time, 
Special Counsel Hur determined that President Biden ``told 
Zwonitzer he had just found classified material downstairs'' in 
his rental home in Virginia.\51\
---------------------------------------------------------------------------
    \50\Id. at 109-10.
    \51\Id. at 108.
---------------------------------------------------------------------------
    As observed in Special Counsel Hur's report, the Espionage 
Act ``prohibits the willful communication, delivery, or 
transmission of national defense information to a person not 
entitled to receive it.''\52\ Special Counsel Hur properly 
acknowledged that a ``person is not entitled to receive 
national defense information if he or she lacks a need to know 
and an appropriate clearance as required'' by Executive Order 
13526.\53\ It is undisputed that, at the time President Biden 
revealed and transmitted classified information to Zwonitzer, 
Zwonitzer lacked any national security credentials or 
clearance.\54\ Under these provisions, Special Counsel Hur 
concluded that ``[the] evidence shows that [President] Biden 
disclosed classified information to Zwonitzer, who was not 
authorized to receive it.''\55\
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    \52\Id. at 185; see 18 U.S.C. Sec. 793(e).
    \53\Id. at 186 (citing U.S. v. Morrison, 844 F.2d 1057, 1075 (4th 
Cir. 1988)).
    \54\Id. at 245.
    \55\Id. 
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    Moreover, Special Counsel Hur found that ``[a]t some point 
after learning of Special Counsel Hur's appointment'' to 
examine President Biden's mishandling of classified 
information, ``Zwonitzer deleted digital audio recordings of 
his conversations with [President] Biden during the writing of 
the book, Promise Me, Dad.''\56\ According to Special Counsel 
Hur, ``[t]hese recordings had significant evidentiary 
value.''\57\ However, Special Counsel Hur and FBI technicians 
``were able to recover deleted recordings relating to Promise 
Me, Dad[,]'' and Zwonitzer ``kept[] and did not delete or 
attempt to delete[] near-verbatim transcripts he made of some 
of the recordings.''\58\ Additionally, Special Counsel Hur 
found that in his interviews with Zwonitzer, Zwonitzer 
``offered plausible, innocent reasons for why he deleted the 
recordings[,]'' and his later actions--``including the 
production [of] transcripts that mention classified 
information--suggest[ed] that his decision to delete the 
recordings was not aimed at concealing those materials from 
investigators.''\59\ Consequently, Special Counsel Hur declined 
to bring charges against Zwonitzer for obstruction of 
justice.\60\
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    \56\Id. at 334.
    \57\Id. (emphasis added).
    \58\Id.
    \59\Id. at 341-42. Special Counsel Hur also found it persuasive 
that Zwonitzer ``voluntarily consented to two interviews and could 
have, but did not, invoke the Fifth Amendment to decline production of 
the transcripts, his laptop, and the external hard drive.'' Id. at 342.
    \60\Id. at 338, 343 (``For these reasons, we believe that the 
admissible evidence would not suffice to obtain and sustain a 
conviction of Mark Zwonitzer for obstruction of justice.'').
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    On February 14, 2024, approximately six days after the 
release of Special Counsel Hur's report, the Committee sent a 
letter to Zwonitzer, requesting six categories of documents and 
records:
          1. All documents and communications shared between 
        Zwonitzer and President Biden or the President's staff 
        or representatives relating to Zwonitzer's ghostwriting 
        work on President Biden's memoirs, Promise Me, Dad and 
        Promises to Keep;
          2. All contracts or agreements relating to 
        Zwonitzer's ghostwriting work on President Biden's 
        memoirs, Promise Me, Dad and Promises to Keep;
          3. All documents evidencing payments to Zwonitzer 
        relating to his ghostwriting work on President Biden's 
        memoirs, Promise Me, Dad and Promises to Keep;
          4. All audio recordings of any interviews or 
        conversations between Zwonitzer and President Biden 
        relating to Zwonitzer's ghostwriting work on his 
        memoirs, Promise Me, Dad and Promises to Keep;
          5. All transcripts of any interviews or conversations 
        between Zwonitzer and President Biden relating to 
        Zwonitzer's ghostwriting work on President Biden's 
        memoirs, Promise Me, Dad and Promises to Keep; and
          6. All documents and communications between Zwonitzer 
        and President Biden or his staff or representatives 
        referring or relating to Department of Justice Special 
        Counsel Robert K. Hur's Report.\61\
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    \61\Zwonitzer Subpoena Letter, supra note 2.
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    On the letter's return date, February 23, 2024, Zwonitzer's 
attorney contacted the Committee and requested that Committee 
staff contact him to discuss the Committee's requests.\62\ That 
discussion occurred on February 26, 2024, during which 
Zwonitzer's attorney represented that, upon Zwonitzer's return 
from a personal trip, he would produce documents to the 
Committee before March 8.\63\ As an accommodation to Zwonitzer, 
and based upon his attorney's representations, the Committee 
agreed to give Zwonitzer until March 8, 2024, to produce the 
requested records.\64\ On March 7, 2024, however, Zwonitzer's 
attorney retracted his previous representations, indicating 
that Zwonitzer would not produce the documents on March 8 as 
promised, and instead stated that he would follow up with the 
Committee.\65\ On March 11, 2024--over two weeks after the 
return date on the original letter--Zwonitzer's attorney 
informed the Committee that Zwonitzer would not produce the 
documents without a subpoena compelling his cooperation.\66\
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    \62\Phone Call Between Mr. Louis M. Freeman, Esq., and Comm. Staff, 
H. Comm. on the Judiciary (Feb. 23, 2024) (voicemail on file with 
Committee).
    \63\Phone Call Between Mr. Louis M. Freeman, Esq., and Comm. Staff, 
H. Comm. on the Judiciary (Feb. 26, 2024).
    \64\Id.
    \65\Email from Mr. Louis M. Freeman, Esq., to Comm. Staff, H. Comm. 
on the Judiciary (4:01 p.m., Mar. 7, 2024) (on file with Committee).
    \66\Phone Call Between Mr. Louis M. Freeman, Esq., and Comm. Staff, 
H. Comm. on the Judiciary (Mar. 11, 2024).
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    On March 22, 2024, the Committee issued a subpoena to 
Zwonitzer for the same six categories of materials requested in 
the February 14 letter.\67\ The subpoena set a return date of 
April 12.\68\ On that date, Zwonitzer's attorney responded with 
a letter raising, for the first time, objections and concerns 
with the Committee's requests and the subpoena.\69\ First, 
Zwonitzer challenged the legislative purpose behind the 
subpoena--namely that the requests contained therein were 
``broad'' and ``d[id] not make it at all clear how the 
materials [sought] . . . would further the purpose of [the 
Committee's] legislative reform.''\70\ Second, Zwonitzer raised 
a First Amendment challenge to the subpoena, alleging that it 
``violates [Zwonitzer's] own rights as an author and 
journalist.''\71\ Third, in a seemingly vague reference to the 
Fifth Amendment, Zwonitzer stated a ``reluctance to comply with 
the subpoena[]'' because of ``comments'' by Members of Congress 
that ``either directly or indirectly suggest[ed] that . . . 
Zwonitzer should have been, should be or will be (under a 
different administration) prosecuted for his actions.''\72\ 
Finally, Zwonitzer claimed that the subpoenaed documents and 
materials ``contain the President's highly personal 
information,'' therefore he is not required to produce those 
materials.\73\
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    \67\Zwonitzer Subpoena Letter, supra note 2.
    \68\Id.
    \69\Letter from Mr. Louis M. Freeman, Counsel for Mr. Mark 
Zwonitzer, to Rep. Jim Jordan, Chairman, H. Comm. on the Judiciary 
(Apr. 12, 2024) (hereinafter ``Zwonitzer Apr. 12 Letter'').
    \70\Id. at 3-5.
    \71\Id. at 6.
    \72\Id. at 7.
    \73\Id. at 2.
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    On May 6, 2024, the Committee responded to Zwonitzer's 
attorney, explaining in detail that the stated objections and 
concerns were unfounded and did not excuse him from his legal 
obligation to comply with the subpoena.\74\ First, the 
Committee explained that its subpoena to Zwonitzer furthers a 
legitimate legislative purpose.\75\ Second, the Committee 
explained that no valid constitutional privilege relieved 
Zwonitzer of his legal obligation to comply with the 
subpoena.\76\ The Committee accordingly notified Zwonitzer that 
it ``expects full compliance with the subpoena'' by May 20, 
2024 and that failure to do so could result in the invocation 
of contempt of Congress proceedings.\77\
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    \74\Letter from Rep. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, to Mr. Louis M. Freeman, Esq., Counsel for Mr. Mark 
Zwonitzer (May 6, 2024) (hereinafter ``Committee May 6 Letter'').
    \75\Id.
    \76\Id.
    \77\Id.
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    On May 20, 2024, the date by which the Committee requested 
Zwonitzer's full compliance with the subpoena, Zwonitzer's 
counsel wrote again to note the ``concerns'' with the subpoena 
``remain.''\78\ This letter repeated and restated the same 
concerns that the Committee had previously considered and 
addressed.
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    \78\Letter from Mr. Louis M. Freeman, Esq. Counsel for Mr. Mark 
Zwonitzer, to Rep. Jim Jordan, Chairman, H. Comm. on the Judiciary (May 
20, 2024).
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    On June 25, 2024, just two days before the start of the 
Committee's meeting to consider a report recommending that 
Zwonitzer be held in contempt of Congress, the Committee 
received a letter from Mr. Edward Siskel, Counsel to President 
Biden, informing the Committee that the subpoenaed information 
and materials are ``the personal information of the sitting 
President[,]'' and, accordingly, ``raise `significant 
separation of powers issues.'''\79\ On the same day, the 
Committee also received a letter from Zwonitzer's attorney, 
stating that the White House informed Zwonitzer that he ``is 
not authorized to provide any of the President's information 
until it has been reviewed for Executive Branch confidentiality 
concerns and a resolution of the[] constitutional issues 
between the two branches has been reached.''\80\ Also attached 
to that correspondence was a June 25, 2024, letter from Mr. 
Siskel to Zwonitzer's attorney, stating that the Committee's 
subpoena ``seeks broad swaths of personal information that 
President Biden provided to [Zwonitzer] in confidence as part 
of the process of writing his memoirs[,]'' and ``[t]he vast 
majority of th[e] information is private.''\81\
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    \79\Letter from Mr. Edward N. Siskel, Counsel to the President, The 
White House, to Rep. Jim Jordan, Chairman, H. Comm. on the Judiciary, 
at 2 (June 25, 2024) (``In addition, it is my understanding that the 
Committee's sweeping subpoena encompasses information--such as details 
about confidential and non-public conversations among senior 
presidential advisors--that Congress, the Executive Branch, and the 
Supreme Court have long protected against unwarranted disclosure in 
order to safeguard the `complete candor and objectivity' of 
presidential advisors.'').
    \80\Letter from Mr. Louis M. Freeman, Esq., Counsel for Mr. Mark 
Zwonitzer, to Rep. Jim Jordan, Chairman, H. Comm. on the Judiciary, at 
1 (June 25, 2024) [hereinafter ``Zwonitzer June 25 Letter''].
    \81\Letter from Mr. Edward N. Siskel, Counsel to the President, The 
White House, to Mr. Louis Freeman, Counsel for Mr. Mark Zwonitzer, at 2 
(June 25, 2024) (``[Y]our client has no authority to resolve the 
separation-of-powers concerns at issue.'') [hereinafter ``Siskel June 
25 Letter to Zwonitzer''].
---------------------------------------------------------------------------
    Despite the fact that the Committee has already heard and 
responded to similar arguments from Zwonitzer, Zwonitzer 
continues to use these arguments in an effort to flout the 
Committee's subpoena. To date, Zwonitzer has failed to comply 
with the Committee's subpoena in any way.

Zwonitzer's Failure to Produce the Subpoenaed Records Warrants Contempt

    The Committee has articulated the legislative purpose for 
its subpoena to Zwonitzer. Zwonitzer 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 three months since the Committee's 
initial requests to Zwonitzer, and following the release of 
Special Counsel Hur's report, Zwonitzer has not produced any 
responsive information, documents, or materials to the 
Committee.

        I. The Committee has a Need for the Subpoenaed Material

    The responsive records in Zwonitzer's possession are highly 
relevant to and necessary for the Committee's oversight 
inquiries.
    In his report, Special Counsel Hur noted that once FBI 
agents contacted Zwonitzer regarding his ghostwriting work on 
President Biden's memoirs, he ``provided investigators 
[materials] that included near-verbatim transcripts and . . . 
audio recordings'' of his interviews with President Biden.\82\ 
Relying on these materials, Special Counsel Hur recounts 
several actions of President Biden that could constitute the 
willful disclosure of classified information to Zwonitzer. For 
example, on February 16, 2017, Special Counsel Hur reported 
that President Biden ``appeared to explain to Zwonitzer that a 
notebook entry related to `a long meeting on the Security 
Council . . . probably was classified[,]''' but nonetheless 
``read aloud . . . portions of th[at] notebook entry that 
contained classified information.''\83\ Further, on April 10, 
2017, Special Counsel Hur reported that ``during another 
recorded conversation with Zwonitzer, [President] Biden turned 
to the same notebook entry and read additional classified 
portions aloud, again nearly verbatim.''\84\ Special Counsel 
Hur also observed that, on April 24, 2017, President Biden 
``read aloud to Zwonitzer portions of a different entry of 
classified notes from a National Security Council meeting, also 
nearly verbatim.''\85\ Special Counsel Hur reported that 
``[w]hen [President] Biden could not read a particular word in 
the entry, he showed the entry to Zwonitzer but warned him, 
`[s]ome of this may be classified, so be careful. . . .'''\86\ 
Such actions led Special Counsel Hur to determine that 
``[President] Biden's decision to read notes nearly verbatim to 
Zwonitzer that [President] Biden had just identified as 
potentially classified information cannot be justified[,]''\87\ 
and he ``should have known that by reading his unfiltered notes 
about classified meetings in the Situation Room, he risked 
sharing classified information with his ghostwriter.''\88\ 
Notwithstanding this and other examples, Special Counsel Hur 
concluded that, although there was evidence that President 
Biden disclosed classified information to Zwonitzer, ``the 
evidence falls short of proving that [President] Biden did so 
willfully. . . .''\89\ For example, the Special Counsel 
concluded that some jurors may have reasonable doubts that 
President Biden willfully disclosed classified information to 
Zwonitzer because his ``apparent lapses and failures'' in 
sharing classified information with Zwonitzer would ``appear 
consistent with the diminished faculties and faulty memory he 
showed'' in the recordings of his interviews with 
Zwonitzer.\90\
---------------------------------------------------------------------------
    \82\Hur Report, supra note 3, at 335.
    \83\Id. at 245.
    \84\Id.
    \85\Id. at 246.
    \86\Id. at 246.
    \87\Id. at 247.
    \88\Id. at 244.
    \89\Id. at 245.
    \90\Id. at 247-248.
---------------------------------------------------------------------------
    The transcripts and audio recordings of Zwonitzer's 
interviews of President Biden are of ultimate evidentiary value 
regarding the President's mental state when he disclosed 
classified materials to Zwonitzer, his intent in doing so, and 
the extent to which such materials were disclosed. In 
particular, only by reviewing these transcripts and audio 
recordings, can the Committee assess for itself the Special 
Counsel's conclusion that President Biden should not be 
prosecuted for willfully disclosing classified information even 
though the evidence is clear that he did disclose classified 
information.
    Additionally, among the other requested documents and 
materials, the Committee subpoenaed ``all contracts or 
agreements relating to [Zwonitzer's] ghostwriting work'' on 
President Biden's memoirs, and ``all documents and 
communications between [Zwonitzer] and [President Biden] or his 
staff or representatives referring or relating to'' Special 
Counsel Hur's report. These materials would allow the Committee 
to assess the scope of Zwonitzer's work with President Biden, 
including but not limited to any agreements between the parties 
regarding the handling, dissemination, and storage of 
classified information, and the role that Zwonitzer played, if 
any, in Special Counsel Hur's decision not to prosecute him or 
President Biden.

  II. Zwonitzer's Stated Objections to the Subpoena are Unfounded and 
                              Unpersuasive


 A. THE COMMITTEE HAS A LEGITIMATE LEGISLATIVE PURPOSE FOR THE SUBPOENA

    As explained to Zwonitzer, the Committee has articulated a 
legitimate legislative purpose for the subpoena. As a general 
matter, Congress has broad power to ``conduct inquiries into 
the administration of existing laws, studies of proposed laws, 
and . . . studies of defects in our social, economic, or 
political system for the purpose of enabling Congress to remedy 
them.''\91\ Courts recognize that ``this power of inquiry--with 
the process to enforce it--is an essential and appropriate 
auxiliary to the legislative function.''\92\ To that end, a 
congressional subpoena is valid ``if it is related to, and in 
furtherance of, a legitimate task of the Congress.''\93\ The 
subpoena must serve a ``valid legislative purpose, and concern 
a subject on which ``legislation could be had.''\94\ Therefore, 
``evaluating a congressional subpoena is strictly limited to 
determining only whether the subpoena is `plainly incompetent 
or irrelevant to any lawful purpose . . . in the discharge of 
[the subpoenaing Committee's] duties.'''\95\ The Committee's 
subpoena meets this standard.
---------------------------------------------------------------------------
    \91\Watkins, 354 U.S. at 187.
    \92\McGrain, 273 U.S. at 174.
    \93\Watkins, 354 U.S. at 187.
    \94\Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 506 (1975).
    \95\Bragg v. Jordan, 669 F.Supp.3d 257, 267-68 (2023) (quoting 
McPhaul v. U.S. 372, 381 (1960)).
---------------------------------------------------------------------------
    The Committee's subpoena compels the production of six 
narrow categories of documents formulated to gather information 
necessary to inform such potential legislation.\96\ First, as 
discussed in Section I above, the Committee must have the 
transcripts and audio recordings subpoenaed from Zwonitzer to 
properly assess whether Special Counsel Hur appropriately 
pursued justice by declining to recommend charges against 
President Biden because of his poor mental state at the time 
that he disclosed classified information to Zwonitzer. If the 
Committee determines, based on a review of this evidence, that 
Special Counsel Hur's conclusion was flawed and not consistent 
with the Department of Justice's commitment to impartial 
justice, then the Committee will consider whether legislative 
reforms to the Department of Justice and its use of special 
counsels are necessary. These potential legislative reforms may 
include, among other things, changing certain procedures 
governing the Department's special counsel investigations to 
better ensure that the Department pursues impartial justice. 
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.
---------------------------------------------------------------------------
    \96\Id.
---------------------------------------------------------------------------
    Second, the information that the Committee requires, and 
Zwonitzer is in possession of, is necessary for the Committee 
to consider potential legislative reforms that would alter the 
willfulness standard in disclosing classified information or 
modify criminal penalties for the unauthorized dissemination 
and disclosure of classified materials.\97\
---------------------------------------------------------------------------
    \97\Zwonitzer Subpoena Letter, supra note 2.
---------------------------------------------------------------------------
    As an initial matter, the Committee seeks to understand the 
extent to which President Biden disclosed classified materials 
to Zwonitzer, and the intent, or lack thereof, with which such 
disclosures were made. Under Executive Order 13526, which 
governs access to classified information across the executive 
branch, a person is not authorized to receive classified 
information unless he or she has: (1) had a ``favorable 
determination of eligibility . . . made by an agency head or 
the agency head's designee;'' (2) ``signed an approved 
nondisclosure agreement; and'' (3) ``has a need-to-know the 
information.''\98\ Notably, however, the Executive Order 
provides that the ``need-to-know requirement'' may ``be waived 
by an agency'' if the agency ``determines in writing that 
access is consistent with the interest of national security,'' 
``takes appropriate steps to protect [the] classified 
information from unauthorized disclosure or compromise,'' and 
``ensures the information is safeguarded in a manner consistent 
with [the Executive Order].''\99\ It is undisputed that 
Zwonitzer lacked any security clearance or satisfied any of 
these three conditions for waiver of the ``need-to-know'' 
requirement. However, the report of Special Counsel Hur 
contains evidence that President Biden still--perhaps 
willfully--disclosed classified information, including national 
defense information, to Zwonitzer. The Committee seeks to 
evaluate such information in light of the terms of the 
Executive Order in order to determine the sufficiency of the 
Executive Order and whether clearer criminal penalties are 
needed to prevent such conduct by future executive branch 
officials entrusted with classified information.
---------------------------------------------------------------------------
    \98\Exec. Order No. 13526 Sec. 4.1(a)(1)-(3); see Hur Report, supra 
note 3, at 16-17.
    \99\Exec. Order No. 13526 Sec. 4.4(b)(1)-(2); see Hur Report, supra 
note 3, at 16-17.
---------------------------------------------------------------------------
    Further, given Special Counsel Hur's findings regarding 
Zwonitzer's deletion of relevant records, the Committee could 
consider legislative reforms governing criminal penalties for 
destroying evidence--especially when that evidence includes 
classified information that was disclosed in an unauthorized 
manner. According to Special Counsel Hur, after he was 
```aware' of the Department of Justice investigation of 
[President] Biden's potential mishandling of classified 
materials[,]'' Zwonitzer ``deleted . . . audio files [of his 
interviews with President Biden] from his laptop and external 
hard drive.''\100\ In his interactions with the Special 
Counsel's investigation, Zwonitzer apparently declined to ``say 
how much of the percentage of [the Special Counsel's 
investigation] was [his] motivation'' to delete the 
recordings.\101\ Despite this admission, Special Counsel Hur 
declined to bring charges against Zwonitzer for obstructing the 
investigation.\102\ The Committee seeks to understand the 
extent to which Zwonitzer potentially impeded Special Counsel 
Hur's investigation by deleting the subject recordings and the 
subpoenaed information would inform potential legislation aimed 
at curbing such conduct by witnesses in the future.
---------------------------------------------------------------------------
    \100\Id. 335-36.
    \101\Id. at 337-38.
    \102\See id.
---------------------------------------------------------------------------

B. THE FIRST AMENDMENT DOES NOT PROTECT ZWONITZER'S NONCOMPLIANCE WITH 
                              THE SUBPOENA

    Contrary to the assertion from Zwonitzer's counsel, neither 
the First Amendment nor any claims of ``reporter's privilege'' 
protects the information sought by the Committee from 
disclosure. The Committee has a strong record of protecting the 
First Amendment rights of journalists and standing against the 
compelled disclosure of their sources.\103\ But Zwonitzer was 
not acting as a journalist here. It is established law that the 
``party asserting the reporter's privilege . . . bears the 
burden of showing that it applies in a particular case.''\104\ 
Whether Zwonitzer has functioned as a reporter in other 
contexts, as his counsel alleged, is irrelevant. To the extent 
Zwonitzer claims protection under the qualified common law 
``reporter's privilege,'' the Committee has concluded that he 
has not met his burden in establishing that his work on 
President Biden's memoirs made him a ``reporter.'' Federal law 
requires a showing that, while writing the President's memoir, 
Zwonitzer engaged in ``news gathering'' activities and that he 
spoke with President Biden ``in the course of gathering the 
news.''\105\ Zwonitzer has provided no evidence or compelling 
argument that his conversations with President Biden 
constituted newsgathering as opposed to assisting President 
Biden's efforts to write a book. Nor has Zwonitzer demonstrated 
that President Biden qualifies as a ``source'' under the common 
law privilege, given that the President is the subject and 
apparent ``author'' of the memoirs. Moreover, the information 
sought by the Committee does not call for any information that 
came from a confidential source, which is what most cases about 
the reporter's privilege involve.\106\ It is public knowledge 
that President Biden worked with Zwonitzer to write his 
memoirs, and the contents of the memoirs are available to the 
public.
---------------------------------------------------------------------------
    \103\See Fighting for a Free Press: Protecting Journalists and 
Their Sources: Hearing Before the Subcomm. on the Constitution and 
Limited Government, 118th Cong. 11 (Apr. 11, 2024) (``[A] free press is 
essential to having a robust First Amendment and free debate in our 
culture. And if you don't have free debate, if you can't settle your 
disputes by arguing and debating, the alternative is frightening.'') 
(Statement of Chairman Jim Jordan); Letter from Rep. Jim Jordan, 
Chairman, H. Comm. on the Judiciary, to Ms. Ingrid Ciprian-Matthews, 
President, CBS News (Feb. 23, 2024) (The seizure of a journalist's 
investigative files ``threaten[s] to chill good journalism and 
ultimately weaken our nation's commitment to a free press.'').
    \104\U.S. Commodity Futures Trading Comm'n v. McGraw-Hill Cos., 507 
F.Supp.2d 45, 50 (D.D.C. 2007).
    \105\Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993) (``The 
journalist's privilege is designed to protect investigative reporting. 
. . .'').
    \106\See Branzburg v. Hayes, 408 U.S. 665, 682-84 (1972); see 
Zerilli v. Smith, 656 F.2d. 705, 710-12 (D.C. App. 1981); see Carey v. 
Hume, 492 F.2d 631, 632-34 (D.C. App. 1974).
---------------------------------------------------------------------------
    Even assuming that Zwonitzer was acting as a journalist 
when he helped President Biden write his memoirs, once 
Zwonitzer disclosed the audiotapes and other materials to the 
Special Counsel's Office, he cannot now selectively invoke the 
reporter's privilege concerning material he has already 
disclosed to another party.\107\
---------------------------------------------------------------------------
    \107\See, e.g., Ayala v. Ayers, 668 F.Supp.2d 1248, 1250 (S.D. Cal. 
2009) (``[L]ike other privileges, it appears that the journalist's 
privilege may be waived.'') (collecting examples of waiver); id. at 
1251 (finding ``an implied waiver of the journalist's privilege'' 
because the journalist had previously produced the material to one 
party and it ``would be unfair and improper to allow [the journalist] 
to invoke the journalist's privilege with respect to this same material 
now that [the other party] wants to see it.''); see also U.S. v. 
Newland, 2021 WL 6051675 (S.D. Cal. Dec. 21, 2021) (unlike ``other 
cases in which a waiver of the journalist's privilege was implied in 
cases of selective disclosure,'' the court found there was no implied 
waiver in this case because ``there is no evidence that [the 
journalists] have disclosed any portion of the interviews to the 
government or its agents'').
---------------------------------------------------------------------------

    C. THERE IS NO FIFTH AMENDMENT BASIS TO WITHHOLD THE SUBPOENAED 
                                MATERIAL

    To avoid complying with the Committee's subpoena, only two 
days before the Committee's meeting to consider a report 
recommending that Zwonitzer be held in contempt of Congress, 
Zwonitzer invoked the Fifth Amendment right against self-
incrimination.\108\ However, federal courts observe that ``the 
Fifth Amendment privilege against self-incrimination generally 
does not apply to incriminating documents [like the ones 
requested from Zwonitzer]; instead, it applies only to 
`testimonial communication that is incriminating.'''\109\ The 
act of producing a document might constitute a testimonial 
communication (1) ``[i]f the existence and location of the 
subpoenaed documents are unknown to the government[;]'' and (2) 
``where the [responding party's] production of documents may 
`implicitly authenticate' the documents.''\110\ These criteria 
are not satisfied here. Special Counsel Hur's report detailed 
Zwonitzer's actions with respect to the responsive materials in 
his possession that he deleted.\111\ The government already 
knows the materials exist and their authenticity is not in 
question. Accordingly, the Fifth Amendment privilege does not 
shield Zwonitzer from producing the requested materials to the 
Committee.
---------------------------------------------------------------------------
    \108\Zwonitzer June 25 Letter, supra note 80, at 4.
    \109\U.S. v. Clark, 574 F.Supp.2d 262, 266 (D. Conn. 2008) 
(emphasis in original). This rule applies when such documents in the 
responding party's possession were prepared by a third party or were 
the responding party's personal records. Id. Further, courts have 
observed that ``[e]ven though the contents of a document may not be 
privileged, the Fifth Amendment does protect the communicative aspects 
of the act of production.'' Id.
    \110\Id. at 266-67.
    \111\Hur Report, supra note 3, at 334-44.
---------------------------------------------------------------------------

    D. MAZARS IS INAPPLICABLE TO THE SUBPOENA TO ZWONITZER AND ANY 
           ASSERTION OF EXECUTIVE PRIVILEGE WOULD BE INVALID

    Zwonitzer has argued that the Supreme Court's decision in 
Trump v. Mazars USA, LLP,\112\ makes the subpoenaed materials 
part of President Biden's ``personal papers,'' and, thus, not 
subject to disclosure.\113\ However, Mazars is not the proper 
framework here. There, multiple House committees had issued 
subpoenas to financial institutions and an accounting firm 
seeking, among other things, ``the financial information of the 
President, his children, their immediate family members, and 
several affiliated business entities[,]'' as well as 
``information related to the President and several affiliated 
business entities . . . including statements of financial 
condition, independent auditors' reports, financial reports, 
[and] underlying source documents. . . .''\114\ In short, each 
subpoena sought personal financial information of the President 
in the possession of a third party--and each third party 
arguably had some legal obligation to maintain the 
confidentially of that information. The Mazars framework thus 
only applies to personal information about the President held 
by third parties that is covered by some contractual or 
statutory obligation of confidentiality.
---------------------------------------------------------------------------
    \112\Trump v. Mazars USA, LLP, 591 U.S. 848, 854-56 (2020).
    \113\Zwonitzer Apr. 12 Letter, supra note 69, at 3.
    \114\Mazars, 591 U.S. at 854-56.
---------------------------------------------------------------------------
    Despite the White House's position that ``the Committee 
seeks to avoid the analysis required by Mazars--and the 
invalidity of its subpoena that would unavoidably result under 
such analysis[,]''\115\ the Committee determined, based on the 
actual holding of Mazars, that its framework is inapplicable to 
the subpoena at bar. Zwonitzer has not established that he is 
under any obligation--whether contractual or otherwise--to 
maintain the confidentiality of the information that was used 
to write the publicly released memoir. Furthermore, the 
information sought here relates to the disclosure of classified 
information, which, by definition, is in no way personal 
information about the President and therefore is distinct from 
what was at issue in Mazars. Accordingly, the Mazars framework 
is inapplicable, and Zwonitzer's argument is without merit.
---------------------------------------------------------------------------
    \115\Siskel June 25 Letter to Zwonitzer, supra note 81, at 2 (The 
Committee's subpoena, ``necessitate[s], on the advice of counsel, an 
assertion of the constitutional privilege against self-
incrimination.'').
---------------------------------------------------------------------------
    Turning to the White House's invocation of Executive Branch 
confidentiality interests, the Committee has numerous concerns 
about the validity of the White House's assertions both to the 
Committee and to Zwonitzer's attorney. First, the White House 
does not cite any legal or persuasive authority or support for 
its proposition that executive privilege somehow applies to 
conversations between a former Vice President and a private 
citizen.\116\ Second, in the unlikely event that such authority 
or support exists, any assertion of executive privilege has 
been waived. Specifically, since President Biden provided such 
material to and created such material with Zwonitzer for the 
purpose of writing a book, allowed Zwonitzer to keep the 
material after the book project was over, and apparently did 
not have any contract with Zwonitzer requiring him to keep the 
material confidential, any assertion of executive privilege 
would be without merit. This is also bolstered by the fact that 
the White House apparently did not assert executive privilege 
over the material before it was disclosed to Special Counsel 
Hur and his team.\117\ Consequently, the White House's last-
minute decision to raise the prospect that executive privilege 
could apply is baseless and serves no purpose other than to 
further impede the Committee from carrying out its duties.
---------------------------------------------------------------------------
    \116\See id. at 3 (``Your client is not authorized to provide any 
of the President's information until it has been reviewed for Executive 
Branch confidentiality concerns . . .'').
    \117\Letter from Mr. Robert K. Hur, Special Counsel, U.S. Dep't of 
Justice, to Hon. Merrick B. Garland, Att'y Gen., U.S. Dep't of Justice, 
at 2 (Feb. 5, 2024) (``The White House Counsel has not conveyed to me 
the President's decision as to assertions of executive privilege.'').
---------------------------------------------------------------------------
    In short, the subpoenaed materials would inform the 
Committee as to the need for legislative reforms governing the 
handling, storage, and disclosure of classified materials by 
federal officials, and modifying criminal penalties for the 
unauthorized dissemination and disclosure of classified 
materials. The subpoenaed materials would also allow the 
Committee to consider potential legislative reforms regarding 
the Justice Department's commitment to impartial justice. The 
Constitution does not permit private citizens or the executive 
branch to dictate to Congress how to conduct its 
oversight.\118\ Rather, ``congressional committees have 
significant discretion in how they approach an 
investigation[.]''\119\ Zwonitzer's refusal to produce the 
subpoenaed materials has impeded the House and the Committee in 
carrying out its constitutional responsibilities.
---------------------------------------------------------------------------
    \118\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 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).
    \119\Todd Garvey, Cong. Rsch. Serv., Committee Discretion in 
Obtaining Witness Testimony 2 (2023).
---------------------------------------------------------------------------

                               Conclusion

    Special Counsel Hur's report makes clear, despite its 
conclusion that criminal charges are not warranted, that 
President Biden unlawfully retained and disclosed classified 
materials while he was a private citizen. The Committee 
subpoenaed Zwonitzer to produce documents and materials 
necessary to inform and carry out the Committee's legislative 
oversight. To date, despite assurances that Zwonitzer would 
cooperate, significant accommodations from the Committee, 
numerous requests for materials responsive to the subpoena, and 
a specific warning that failure to produce the documents and 
materials would result in contempt proceedings, Zwonitzer has 
failed to do so. Zwonitzer's willful refusal to comply with the 
Committee's subpoena constitutes contempt of Congress and 
warrants referral to the appropriate United States Attorney's 
Office for prosecution as prescribed by law.

                        Committee Consideration

    On June 27, 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 
13-11, 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. Bishop of North Carolina--passed 13 ayes to 12 
        nays.
          2. Vote on Amendment #3 to the Report ANS offered by 
        Ms. McBath--failed 9 ayes to 13 nays.
          3. Vote on Amendment #4 to the Report ANS offered by 
        Ms. Dean--failed 8 ayes to 13 nays.
          4. Vote on Amendment #5 to the Report ANS offered by 
        Ms. Escobar--failed 8 ayes to 11 nays.
          5. Vote on Amendment #6 to the Report ANS offered by 
        Mr. Johnson of Georgia--failed 8 ayes to 11 nays.
          6. Vote on Amendment #7 to the Report ANS offered by 
        Mr. Johnson of Georgia--failed 8 ayes to 13 nays.
          7. Vote on favorably reporting the Report, as 
        amended--passed 13 ayes to 11 nays.
        
        
                      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 R. 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 continues to lash out in anger that Special 
Counsel Robert Hur exonerated President Biden. After a failed 
impeachment inquiry, spending millions of taxpayer dollars on a 
weaponization subcommittee that has gone nowhere, conducting 
over 125 witness interviews, and reviewing millions of pages of 
documents, the Majority has absolutely nothing to show for its 
work this do-nothing Congress. To compound its frustration, the 
Supreme Court recently shot down one of the Majority's biggest 
conspiracy theories--that social media companies were coerced 
by the Biden White House to ``censor'' harmful disinformation 
during a global pandemic--noting that a number of the lower 
court's findings were ``clearly erroneous''.
    Republicans should cut their losses and use the last few 
months of this Congress to help their constituents with the 
very real problems that they face on a daily basis. Instead, 
the Majority has chosen to spend its valuable resources by 
threatening President Biden's ghostwriter, a private citizen 
named Mark Zwonitzer, with criminal contempt. The Majority is 
set on obtaining Mr. Zwonitzer's audio files of President Biden 
for political purposes. Oversight Chairman James Comer recently 
let this admission slip in a campaign email stating that if he 
gets his hands on the audio tapes of President Biden involving 
the Hur investigation, he will release them to the public to 
convince ``swing voters.''
    This contempt report before the House is yet another step 
in the Majority's shameful degradation of this Committee's 
reputation and decorum. This Committee has now decided to take 
a private citizen hostage in a dispute between two co-equal 
branches of government. The Majority is aware that the 
Department of Justice has possession of these materials, the 
vast majority of which is private, and that the materials 
undisputedly invoke weighty separation of powers issues. 
Letters from both Mr. Zwonitzer's attorney and the White House 
have urged the Committee to respect the Constitution by taking 
its requests to the Executive Branch where they belong.
    This is not, however, a legitimate oversight exercise and 
the reasons offered by the Committee are completely pretextual. 
For example, the Majority claims it needs the transcripts and 
audio recording of Mr. Zwonitzer's interviews to understand the 
President's mental state and to ensure that the Special Counsel 
``appropriately pursued justice.'' Congress, however, is not a 
law enforcement agency. The Majority has no genuine reason for 
re-investigating a closed case besides its apparent anger that 
Donald Trump's political opponent was exonerated. The Majority 
is also abundantly aware that Special Counsel Hur considered 
Mr. Zwonitzer's materials in his exhaustive 15-month probe with 
173 interviews (including interviews of Mr. Zwonitzer), seven 
million pages of documents, and accompanying 345-page final 
report. Special Counsel Hur has made his decision appropriately 
and in accordance with all the applicable Department of Justice 
guidelines. The Majority needs to accept defeat and move on.
    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 
the evidence does not establish beyond a reasonable doubt 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.\8\ 
Hur's report also distinguished Mr. Biden's conduct from that 
of Mr. Trump.\9\
---------------------------------------------------------------------------
    \7\Id. at 178 (citation omitted).
    \8\Id. at 2-10.
    \9\Id. at 10-11, 250.
---------------------------------------------------------------------------

  A. MR. ZWONITZER TAPED PRESIDENT BIDEN'S INTERVIEWS IN THE ORDINARY 
                                 COURSE

    Between the spring of 2016 and summer of 2017, while 
writing Mr. Biden's memoir, Promise Me, Dad, Mr. Zwonitzer made 
audio recordings of more than a dozen interviews with Biden, as 
well as additional interviews with some of Mr. Biden's family 
members, and created transcripts of these interviews.\10\ 
During these interviews, Mr. Biden often referred to the 
notebooks he kept during his Vice Presidency, and sometimes 
read aloud from them to Mr. Zwonitzer.\11\ On one occasion, Mr. 
Biden showed Mr. Zwonitzer a page to help decipher Mr. Biden's 
handwriting. However, Mr. Biden never let Mr. Zwonitzer 
photocopy or retain the notebooks.\12\
---------------------------------------------------------------------------
    \10\Id. at 100.
    \11\Id.
    \12\Id. at 101-102.
---------------------------------------------------------------------------
    Special Counsel Hur found that Mr. Biden's notebooks 
contained some classified information up to the Secret and Top 
Secret level.\13\ Hur did not find that Mr. Biden regularly 
read Mr. Zwonitzer classified information; to the contrary, 
``when Mr. Biden came to potentially classified material in his 
notebook entries, he appears to have sometimes stopped at or 
skipped over the potentially classified material,'' and 
specifically noted that he needed to be careful not to disclose 
classified information.\14\ On occasion, however, Mr. Biden did 
read aloud to Mr. Zwonitzer some information from his meeting 
notes taken when he was Vice President that was classified up 
to the Secret level, and on one occasion when Mr. Biden could 
not decipher his own handwriting, he showed Mr. Zwonitzer a 
page of his notebook that Mr. Biden noted ``[wasn't] marked 
classified,'' but ``may'' have had classified information on 
it.\15\
---------------------------------------------------------------------------
    \13\Id.
    \14\Id. at 103.
    \15\Id. at 103-106.
---------------------------------------------------------------------------
    Hur determined that he would not be able to prove beyond a 
reasonable doubt that Mr. Biden willfully retained the 
classified information in the notebooks. Specifically, Hur 
found that Mr. 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 President Biden ``was emphatic, 
declaring that his notebooks are `my property,' and that `every 
president before me has done the exact same thing.'''\16\ 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.''\17\ 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.''\18\
---------------------------------------------------------------------------
    \16\Id. at 232.
    \17\Id. at 239.
    \18\Id. at 240-41.
---------------------------------------------------------------------------

  B. MR. ZWONITZER DELETED SOME AUDIO FILES OUT OF GENUINE DESIRE TO 
   PROTECT HIS CLIENT'S PRIVACY AND NOT WITH INTENT TO OBSTRUCT ANY 
                             INVESTIGATION

    At some point after Special Counsel Hur was appointed, Mr. 
Zwonitzer deleted some of the audio files of his interviews 
with President Biden from his computer.\19\ Mr. Zwonitzer 
believed this happened at some point between January and 
February 2023, and he stated that it was his normal practice to 
delete audio files of his interviewees after he was finished 
writing the relevant product, in order to protect his 
interviewee's privacy.\20\
---------------------------------------------------------------------------
    \19\Id. at 334.
    \20\Id. at 336-337.
---------------------------------------------------------------------------
    Subsequently, FBI investigators requested an interview with 
Mr. Zwonitzer and asked for records related to his work on 
Promise Me, Dad, and Mr. Zwonitzer produced records, including 
nearly verbatim transcripts of the interviews with President 
Biden as well as the audio recordings from some of the 
interviews.\21\ When investigators realized some audio files 
were missing and learned that they had been deleted, Mr. 
Zwonitzer ``provided all electronic devices that contained or 
were used to create the recordings and transcripts related to 
Promise Me, Dad.''\22\ All deleted audio files were recovered 
by investigators, though on three of the files ``portions of 
the audio appeared to be missing, and a fourth file appeared to 
have portions overwritten with a separate recording.''\23\ 
Special Counsel Hur's report notes that ``[t]hese results are 
possible when forensic tools are used to recover deleted 
files.''\24\ For each of these four files that were not able to 
be fully recovered, Mr. Zwonitzer voluntarily produced 
transcripts of the interviews to investigators.\25\ 
Subsequently, ``Zwonitzer gave two consensual interviews during 
which he provided relevant information without seeking immunity 
or any protections or assurances (such as a proffer 
agreement).''\26\
---------------------------------------------------------------------------
    \21\Id. at 335.
    \22\Id.
    \23\Id.
    \24\Id.
    \25\Id. at 335-336.
    \26\Id. at 336.
---------------------------------------------------------------------------
    In these interviews, Mr. Zwonitzer explained that although 
he was aware of the Special Counsel's investigation at the time 
he deleted the files, he ``did not expect the investigation to 
involve him'' or think the files contained classified 
information.\27\ He also gave three specific reasons for why he 
deleted the audio recordings:
---------------------------------------------------------------------------
    \27\Id. at 335, 338.
---------------------------------------------------------------------------
           He had a practice of deleting audio 
        recordings after he finished a piece of written work, 
        to protect the interviewee's privacy;
           He had received threatening emails from 
        individuals hostile to Mr. Biden, and he was 
        ``concerned his computer could be hacked'' and the 
        audio files stolen and leaked online, which contained 
        deeply personal information about Mr. Biden's 
        experience losing his son, Beau; and
           He had a heightened sense of awareness about 
        such files being stolen because he had recently written 
        a book on Pegasus, a cyber-surveillance system that 
        could be used to spy on individuals around the 
        world.\28\
---------------------------------------------------------------------------
    \28\Id. at 336-337.
---------------------------------------------------------------------------
    Mr. Zwonitzer was also clear that he did not delete the 
files to obstruct an investigation, and stated, ``when I got 
the subpoena and when I realized that I still had audio that I 
did not know I had on the laptop, I made sure to preserve that 
for this investigation.''\29\ He also confirmed that no one 
from President Biden's circle instructed him to delete any 
files.\30\
---------------------------------------------------------------------------
    \29\Id. at 338.
    \30\Id.
---------------------------------------------------------------------------

 C. SPECIAL COUNSEL HUR'S FOUND AGAINST PROSECUTING MR. ZWONITZER FOR 
                              OBSTRUCTION

    Special Counsel Hur reviewed this information and 
recommended against prosecuting Mr. Zwonitzer for obstruction. 
Specifically, the Special Counsel noted that ``the available 
evidence cannot establish beyond a reasonable doubt that 
Zwonitzer [deleted the recordings] with the intent to impede, 
obstruct, or influence this federal investigation,'' which 
would have been required for a conviction, and that ``Zwonitzer 
offered plausible, innocent reasons for why he deleted the 
recordings.''\31\ He also noted that Mr. Zwonitzer's production 
of records and verbatim transcripts of deleted audio files, his 
voluntary cooperation in two interviews without pleading the 
Fifth Amendment, and his forthright testimony to investigators 
all weigh against the possibility that Mr. Zwonitzer actively 
tried to impede an investigation.\32\ Moreover, the Special 
Counsel noted that given Mr. Zwonitzer's cooperation and good 
faith efforts, it would--on balance--deter good faith 
cooperation of future witnesses in other investigations if the 
Department were to prosecute Mr. Zwonitzer.\33\
---------------------------------------------------------------------------
    \31\Id. at 341.
    \32\Id. at 342-343.
    \33\Id. at 343-344.
---------------------------------------------------------------------------

         D. THE MAJORITY'S REQUESTS FOR RECORDS AND AUDIO FILES

    The Majority has requested a series of documents, files, 
transcripts, and audio recordings from both the Department of 
Justice (``DOJ'' or ``the Department'') and Mr. Zwonitzer 
directly. Mr. Zwonitzer has already turned over relevant 
information to the Department, and--as described in Special 
Counsel Hur's report--has fully complied with the Department's 
investigation of President Biden.

1. Majority's Engagement with DOJ Regarding Mr. Zwonitzer

    On February 7, 2024, the Attorney General notified the 
Committee that Special Counsel Hur had concluded his 
investigation.\34\ The following day, the Attorney General 
produced the entire unredacted report to Congress and made it 
available to the public.\35\ 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:
---------------------------------------------------------------------------
    \34\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).
    \35\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.\36\
---------------------------------------------------------------------------
    \36\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).

    In a series of correspondence after this initial February 
7, 2024, communication, DOJ continually provided responsive 
information and documents to the Committee consistent with DOJ 
regulations, but Committee Republicans repeatedly asserted that 
the DOJ's productions were inadequate and issued subpoenas for 
more information. In one such instance, on March 25, 2024, 
Chairmen Jordan and Comer notified the DOJ that their 
compliance had been deficient and requested that the Department 
provide additional information, which included reiterating the 
request for the transcripts and audio recordings of Special 
Counsel Hur's interviews of Mr. Zwonitzer.\37\
---------------------------------------------------------------------------
    \37\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 Mr. Zwonitzer, which took 
place on July 31, 2023 and January 4, 2024.\38\ 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.''\39\
---------------------------------------------------------------------------
    \38\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).
    \39\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).
---------------------------------------------------------------------------

2. Majority's Engagement with Mr. Zwonitzer

    In addition to sending requests and subpoenas to DOJ, 
Committee Republicans requested information from Mr. Zwonitzer 
directly. On February 14, 2024, Chairman Jordan wrote to Mr. 
Zwonitzer requesting all information related to his writing of 
President Biden's memoirs.\40\ This request included the 
production of all documents, communications, phone logs, 
transcripts, audio recordings, and more related to Mr. 
Zwonitzer's work with President Biden on the memoirs.\41\ It 
also demanded that Mr. Zwonitzer appear for a transcribed 
interview before the Committee.\42\
---------------------------------------------------------------------------
    \40\Letter from the Hon. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, to Mark Zwonitzer (Feb. 14, 2024).
    \41\Id.
    \42\Id.
---------------------------------------------------------------------------
    Chairman Jordan issued a subpoena to Mr. Zwonitzer for the 
requested documents and records on March 22, 2024, citing 
``Congress's `broad and indispensable' power to conduct 
oversight.''\43\ Mr. Zwonitzer's attorney, Louis M. Freeman, 
responded on April 12, 2024, outlining constitutional concerns 
with the subpoena.\44\ Specifically, he pointed out that the 
dozens of hours of interview audio recordings sought by the 
Committee contains extremely personal information, constituting 
``personal papers'' of the President, which is subject to a 
higher level of scrutiny when sought by Congress via a 
subpoena.\45\ When Congress seeks the disclosure of personal 
information of a president, it is required to show how that 
information sought will advance a specific legislative purpose, 
and that it could not reasonably obtain the information it 
needs from other sources.\46\ Moreover, Mr. Freeman explained 
that the District of Columbia Circuit Court respects a 
reporter's privilege, and that this situation falls squarely 
under that protection.\47\ He finally explained how the 
Committee has not met these standards, especially given that 
their ``legislative purpose'' was vague and unclear.\48\
---------------------------------------------------------------------------
    \43\Id.
    \44\Letter from Louis Freeman, Esq. to the Hon. Jim Jordan, 
Chairman, H. Comm. on the Judiciary, (April 12, 2024).
    \45\Id.; See Trump v. Mazars, 140 S. Ct. 2019 (2020).
    \46\Letter from Louis Freeman, Esq. to the Hon. Jim Jordan, 
Chairman, H. Comm. on the Judiciary, (April 12, 2024); See United 
States v. Watkins, 354 U.S. 178 (1957).
    \47\Letter from Louis Freeman, Esq. to the Hon. Jim Jordan, 
Chairman, H. Comm. on the Judiciary, (April 12, 2024).
    \48\Id.
---------------------------------------------------------------------------
    On May 6, 2024, Chairman Jordan responded to Mr. Freeman, 
stating that ``[t]he objections raised are unfounded and do not 
excuse [Mr. Zwonitzer] from complying with a Congressional 
subpoena,'' and asserted that ``[n]o valid constitutional 
privilege protects the information in your client's possession 
from disclosure.''\49\ On May 20, 2024, Mr. Freeman responded 
to Chairman Jordan, stating that his prior concerns still 
remain.\50\ He also asserted that it would be more appropriate 
to seek this information from the Department rather than Mr. 
Zwonitzer, a private citizen; that the Hur report already 
covered the information sought by the Committee; and that the 
Committee was seeking First Amendment protected information 
from a journalist without sufficiently showing specific 
legislative need or intent, and without proving they had 
exhausted all other options to gather the information, as 
required by existing caselaw.\51\
---------------------------------------------------------------------------
    \49\Letter from the Hon. Jim Jordan, Chairman, H. Comm. on the 
Judiciary, to Louis Freeman, Esq. (May 6, 2024).
    \50\Letter from Louis Freeman, Esq. to the Hon. Jim Jordan, 
Chairman, H. Comm. on the Judiciary, (May 20, 2024).
    \51\Id.
---------------------------------------------------------------------------

3. The Executive Branch Instructed Mr. Zwonitzer that he is not 
        Authorized to Provide the Materials to the Committee

    On June 25, 2024, the White House wrote to Mr. Zwonitzer's 
attorney, Mr. Freeman, confirming that, of the ``broad swaths 
of personal information that President Biden provided to [Mr. 
Zwonitzer] in confidence as part of his process for writing his 
memoirs,'' the ``vast majority . . . is private.''\52\ The 
White House stated that the Committee's demands invoked weighty 
separation of powers issues designed to protect private 
information of the President from harassment by the legislative 
branch, and noted that the ``[t]he fact that the Committee's 
subpoena is addressed to [Mr. Zwonitzer], rather than the 
Executive Branch, does not alter these principles.''\53\ The 
letter further raised additional concerns that some of the 
materials sought by the Majority implicated sensitive 
information ``such as details about confidential and non-public 
conversations among senior presidential advisors,'' which 
implicate long-standing protections against disclosure to 
safeguard the ```complete candor and objectivity' of 
presidential advisors.''\54\ The White House concluded that Mr. 
Zwonitzer ``is not authorized to provide any of the President's 
information until it has been reviewed by the Executive Branch 
to resolve this `interbranch conflict,' according to the 
longstanding accommodation process, consistent with how courts 
have advised the branches to resolve such disputes.''\55\
---------------------------------------------------------------------------
    \52\Letter from Edward N. Siskel, Counsel to the President, The 
White House, to Mr. Louis M. Freeman, Esq., Counsel to Mark Zwonitzer, 
(June 25, 2024).
    \53\Id.
    \54\Id. (citing United States v. Nixon, 481 U.S. 683, 706 (1974); 
Presidential Records Act of 1978, 44 U.S.C. Sec. Sec. 2201-2209).
    \55\Id. (citations omitted) (emphasis added).
---------------------------------------------------------------------------
    On June 25, 2024, the White House wrote separately to 
Chairman Jordan informing him that, ``Mr. Zwonitzer is not 
authorized to produce to Congress any of the President's 
information absent a resolution of the weighty constitutional 
issues between the Executive and Legislative Branches.''\56\ 
Implicated Executive Branch interests include ``details about 
confidential and non- public conversations among senior 
presidential advisors,'' which have long been protected to 
``safeguard the `complete candor and objectivity' of 
presidential advisors.''\57\ The letter also highlighted that 
the information sought by the Committee has already been 
investigated by Special Counsel Hur, who detailed his findings 
in an exhaustive report, and that ``[a]s the Committee must 
surely be aware, it is not legitimate oversight to seek to re-
investigate that closed matter.''\58\
---------------------------------------------------------------------------
    \56\Letter from Edward N. Siskel, Counsel to the President, to the 
Hon. Jim Jordan, Chairman, H. Comm. on the Judiciary, et al. at 3 (June 
25, 2024).
    \57\Id. at 2.
    \58\Id. at 1.
---------------------------------------------------------------------------
    The White House also offered to work with Congress: ``if 
you were sincerely interested in examining the handling of 
classified information, you would engage with the Executive 
Branch, not a private citizen with no authority related to 
classified information.''\59\ It also admonished the 
Committee's treatment of Mr. Zwonitzer, stating: ``The 
Committee's actions are an obvious example of the very 
weaponization of government for political purposes that you 
claim to decry. Putting a private citizen in your political 
crosshairs and threatening him with criminal prosecution, 
simply because you refuse to engage with the Executive Branch, 
is out of bounds.''\60\
---------------------------------------------------------------------------
    \59\Id. at 1.
    \60\Id. at 2.
---------------------------------------------------------------------------
    On June 25, 2024, Mr. Freeman wrote to Chairman Jordan 
separately requesting that he not proceed with his plans to 
hold his client in contempt.\61\ Mr. Freeman reiterated his 
client's longstanding concerns that the committee lacked a 
legitimate congressional purpose in seeking the requested 
materials, and that political rather than legislative purposes 
were behind the Committee's actions.\62\ Mr. Freeman posited as 
an example Representative James Comer's fundraising email 
promising that he will release the recordings to the public for 
purposes of showing ``Biden's mental state,'' in order to help 
``with swing voters.''\63\ Mr. Freeman also pointed out that 
the House of Representatives had successfully obtained numerous 
documents and materials from the Department of Justice and that 
it had plans to sue the Attorney General to compel additional 
files.\64\ Mr. Freeman also cited concerns regarding the deeply 
private nature of President Biden's conversations in the 
materials (including the subject of his son's death), which 
likely constitute ``personal papers'' of the President. 
Finally, Mr. Freeman invoked additional constitutional 
privilege concerns under the First Amendment given that Mr. 
Zwonitzer is an author and journalist, and the Fifth 
Amendment.\65\
---------------------------------------------------------------------------
    \61\Letter from Louis Freeman, Esq. to the Hon. Jim Jordan, 
Chairman, H. Comm. on the Judiciary, (June 25, 2024).
    \62\See id.
    \63\Id. (citing Email dated May 16, 2024 from ``The desk of the 
Oversight Chairman.'').
    \64\Id.
    \65\Id.
---------------------------------------------------------------------------

                             III. Concerns


                A. THE MAJORITY MISREPRESENTS THE 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. 
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;\66\ (2) 
personal notebooks from the President's time as Vice 
President;\67\ (3) certain documents found at the Penn Biden 
Center, including documents related to negotiations about the 
Iran nuclear deal;\68\ (4) documents found at the University of 
Delaware dating to the President's time as a senator;\69\ 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.\70\ With respect to each category 
of documents, Hur found insufficient evidence to prove beyond a 
reasonable doubt that President Biden willfully retained any of 
the classified documents, and in some cases found that the 
information was not actually classified.
---------------------------------------------------------------------------
    \66\Id. at 145-148.
    \67\Id. at 2-3.
    \68\Id. at 256-311.
    \69\Id. at 312-325.
    \70\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 President Biden willfully 
retained these classified documents.\71\
---------------------------------------------------------------------------
    \71\Id. at 204.
---------------------------------------------------------------------------
    During a February 16, 2017, recorded interview with the 
ghostwriter for his book, Promise Me, Mr. Biden said that he 
had just found classified material ``downstairs,'' and the 
context indicated that those documents might relate to foreign 
policy in Afghanistan.\72\ At the time of the interview, Mr. 
Biden was in a rental home in Virginia. The FBI ultimately 
recovered the Afghanistan documents from Mr. Biden's Delaware 
residence in 2022, while Mr. Biden was the sitting president 
and thus authorized to have classified documents in his 
residence. Special Counsel Hur determined that because Mr. 
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 Mr. 
Biden willfully possessing them in Virginia in 2017.
---------------------------------------------------------------------------
    \72\Id. at 108.
---------------------------------------------------------------------------
    Hur concluded that he could not prove that Mr. Biden 
willfully possessed these documents:
           (1) Mr. 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.''\73\
---------------------------------------------------------------------------
    \73\Id. at 205.
---------------------------------------------------------------------------
           (2) There was ``no definitive evidence'' that the 
        classified Afghanistan documents were stored in Mr. 
        Biden's Virginia home.\74\ 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.''\75\
---------------------------------------------------------------------------
    \74\Id. at 211.
    \75\Id.
---------------------------------------------------------------------------
           (3) Mr. 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.''\76\ With respect to the handwritten memo in 
        particular, Hur noted that Mr. 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.''\77\
---------------------------------------------------------------------------
    \76\Id. at 216.
    \77\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, Mr. Biden regularly took handwritten 
notes in notebooks during briefings, including during 
classified briefings.\78\ After leaving office, he kept these 
notebooks with him at his residence.\79\ Special Counsel Hur 
determined that he would not be able to prove beyond a 
reasonable doubt that Mr. Biden willfully retained the 
classified information in the notebooks.
---------------------------------------------------------------------------
    \78\Id. at 53.
    \79\Id.
---------------------------------------------------------------------------
    Specifically, Hur found that Mr. 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 Mr. Biden 
``was emphatic, declaring that his notebooks are `my property,' 
and that `every president before me has done the exact same 
thing.'''\80\ 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.''\81\ 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.''\82\
---------------------------------------------------------------------------
    \80\Id. at 232.
    \81\Id. at 239.
    \82\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 Mr. 
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 Mr. Biden did not willfully 
retain the documents and that they were likely brought to their 
respective locations by mistake.\83\ 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.''\84\
---------------------------------------------------------------------------
    \83\Id. at 12.
    \84\Id.
---------------------------------------------------------------------------

2. The Majority Misrepresented the Role that President Biden's Age and 
        Memory Played in Hur's Investigation and Decision-Making

    The Majority has misrepresented the role that the 
President's age and memory played in Special Counsel Hur's 
investigation and decision-making. The Majority has, for 
example, 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.''\85\ 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.
---------------------------------------------------------------------------
    \85\Interview with President Joseph R. Biden, Jr. at Day 1, p. 82 
(October 8, 2023) (on file with Committee).
---------------------------------------------------------------------------
    The transcript also 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 
conducted when an international crisis was unfolding in the 
Middle East.\86\ In fact, Special Counsel Hur himself remarked 
that the president had a ``photographic understanding and 
recall'' in response to certain questions.\87\ 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.\88\ He was 
able to provide detailed descriptions of how the Naval 
Observatory was laid out and his office.\89\ He was able to 
provide detailed explanations of the layout of his Wilmington 
home.\90\ Hur observed: ``[W]e expect the evidence of Mr. 
Biden's state of mind to be compelling,'' pointing to his 
``clear, forceful testimony.''\91\
---------------------------------------------------------------------------
    \86\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.
    \87\Id. at Day 1, pp. 47, 92.
    \88\Id. at Day 2, pp. 18-19, 49-50.
    \89\Id. at Day 1, pp. 31-32, 32-33.
    \90\Id. at Day 1, pp. 42-45.
    \91\Hur Rept. supra at 233.
---------------------------------------------------------------------------
    Finally, 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.\92\ Chairman Jordan stated as much in his 
opening statement: ``All this, and yet Special Counsel Hur 
declined to prosecute Joe Biden because `he is a sympathetic, 
well meaning, elderly man with a poor memory.'''\93\ 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.
---------------------------------------------------------------------------
    \92\See, e.g., Contempt Report at 6.
    \93\Contempt Markup Tr. (June 27, 2024).
---------------------------------------------------------------------------

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.''\94\ 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.''\95\
---------------------------------------------------------------------------
    \94\Id. at 1.
    \95\Id. at 8.
---------------------------------------------------------------------------
    Hur's investigation clearly shows that President Biden 
``believed he was allowed to keep the notebooks in his 
home''\96\ and explains that ``this view finds some support in 
historical practice.''\97\ 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.''\98\
---------------------------------------------------------------------------
    \96\Id.
    \97\Id. at 9.
    \98\Id.
---------------------------------------------------------------------------
    Like President Biden's notebooks, President 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.''\99\ Hur's report also acknowledges 
that An American Life includes ``dozens of verbatim quotations 
from Mr. Reagan's diaries''\100\ 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.''\101\
---------------------------------------------------------------------------
    \99\Id. at 197.
    \100\Id.
    \101\Id. at 196; See also: Ronald Reagan, THE REAGAN DIARIES x 
(Douglas Brinkley ed., First Harper Perennial ed. 2009);
---------------------------------------------------------------------------

 B. THE MAJORITY IS TARGETING AN INNOCENT CIVILIAN IN A SEPARATION OF 
                             POWERS DISPUTE

    The Majority is taking a private citizen hostage and 
pitting him between the demands of two co-equal branches of the 
federal government. There are numerous constitutional concerns 
implicated by the request of these materials, as raised in the 
multiple letters to Chairman Jordan, written both by Mr. 
Zwonitzer's attorney as well as the White House.
    First, the Supreme Court in Mazars made it clear that the 
President's personal information raises ``significant 
separation of powers issues.''\102\ ``Given the close 
connection between the Office of the President and its 
occupant, congressional demands for the President's papers can 
implicate the relationship between the branches regardless 
whether those papers are personal or official.''\103\ The 
concern is that, ``[e]ither way, a demand may aim to harass the 
President or render him ``complaisan[t] to the humors of the 
Legislature.''\104\ The Mazars Court commented that the 
``separation of powers concerns are no less palpable . . . 
simply because the subpoenas were issued to third 
parties.''\105\ Otherwise ``Congress could sidestep 
constitutional requirements any time a President's information 
is entrusted to a third party. . . .''\106\ ``The Constitution 
does not tolerate such ready evasion; it `deals with substance, 
not shadows.'''\107\
---------------------------------------------------------------------------
    \102\Mazars, 591 U.S. at 866.
    \103\Id. at 868.
    \104\Id. (quoting Federalist No. 71).
    \105\Id. at
    \106\Id.
    \107\Id. (quoting Cummings v. Missouri, 71 U.S. 277 (1867)).
---------------------------------------------------------------------------
    The White House also raised concerns about the nature of 
the Committee's ``sweeping subpoena,'' which ``encompasses 
information--such as details about confidential and non-public 
conversations among senior presidential advisors--that 
Congress, the Executive Branch, and the Supreme Court have long 
protected against unwarranted disclosure in order to safeguard 
the `complete candor and objectivity' of presidential 
advisors.''\108\ As the White House stated in its June 25, 2024 
letter:
---------------------------------------------------------------------------
    \108\Letter from Edward N. Siskel, Counsel to the President, to the 
Hon. Jim Jordan, Chairman, H. Comm. on the Judiciary, et al. at 3 (June 
25, 2024).

          Mr. Zwonitzer is not authorized to produce to 
        Congress any of the President's information absent a 
        resolution of the weighty constitutional issues between 
        the Executive and Legislative Branches. The Committee 
        should engage with the Executive Branch to resolve this 
        ``interbranch conflict,'' according to the longstanding 
        accommodation process, consistent with how courts have 
        advised the branches to resolve such disputes. Refusing 
        to do so would expose a contempt for the rule of law 
---------------------------------------------------------------------------
        and the Constitution.\109\

    \109\Id. (citations omitted).

    With this contempt resolution, the Majority has chosen to 
bully an innocent private citizen in what should be a dispute 
with the Executive Branch. The Majority is fully aware of its 
constitutional obligations to resolve this inter-branch 
conflict, and it is aware that the Department of Justice has 
possession of these materials. Yet instead of engaging the 
Executive Branch, the Committee has advanced criminal contempt 
proceedings (with potential incarceration) even when Mr. 
Zwonitzer has been instructed by the White House that he is not 
authorized to release the materials. Using the power of 
Congress to bully Mr. Zwonitzer under these circumstances is 
inappropriate and repugnant to the standing and reputation of 
this Committee.

    C. THE MAJORITY HAS NOT STATED A LEGITIMATE LEGISLATIVE PURPOSE

    The Majority is unable to articulate a legitimate 
legislative purpose in demanding these personal audio tapes of 
President Biden. First, the Majority claims, in circular 
fashion, that it needs these audio tapes to ``properly assess 
whether Special Counsel Hur appropriately pursued justice . . 
.'' which may cause the Committee to consider ``changing 
certain procedures . . . to better ensure that the Department 
pursues impartial justice.''\110\ The Committee also alludes to 
partisan bias because Donald Trump was prosecuted in an 
unrelated case by a separate special counsel while Special 
Counsel Hur declined to bring charges against President 
Biden.\111\
---------------------------------------------------------------------------
    \110\Contempt Rep. at 12.
    \111\Id.
---------------------------------------------------------------------------
    These strained arguments are part of the Majority's 
continuing efforts to rewrite Special Counsel Hur's report. 
They have nothing to do with any legitimate purpose. There is 
simply no evidence that the Department took any action that 
calls into question its impartiality. Stark differences exist 
between former President Trump's criminal mishandling of 
documents versus the circumstances that led to a special 
counsel investigation into President Biden.
    As noted by Special Counsel Hur in his report:
          b ``[S]everal material distinctions between Mr. 
        Trump's case and Mr. Biden's are clear.'' There are 
        ``serious aggravating facts'' in the Trump case.\112\
---------------------------------------------------------------------------
    \112\Hur Report, supra note 2, at 11.
---------------------------------------------------------------------------
          b ``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.''\113\
---------------------------------------------------------------------------
    \113\Id.
---------------------------------------------------------------------------
          b ``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.''\114\
---------------------------------------------------------------------------
    \114\Id.
---------------------------------------------------------------------------
    Unlike the deliberate acts by former President Trump to 
retain and conceal classified materials from the federal 
government, Special Counsel Hur found likely inadvertence and/
or mistake. For example, Special Counsel Hur made the following 
findings:
          b ``[W]e find the evidence as a whole insufficient to 
        meet the government's burden of proving that Mr. Biden 
        willfully retained the Afghanistan documents in the 
        Virginia home in 2017.''\115\
---------------------------------------------------------------------------
    \115\Id. at 168-69.
---------------------------------------------------------------------------
          b ``For other recovered classified documents, the 
        decision to decline criminal charges was 
        straightforward.''\116\
---------------------------------------------------------------------------
    \116\Id. at 12.
---------------------------------------------------------------------------
          b ``[T]he evidence suggests that Mr. Biden did not 
        willfully retain these documents and that they could 
        plausibly have been brought to these locations by 
        mistake.''\117\
---------------------------------------------------------------------------
    \117\Id. at 12.
---------------------------------------------------------------------------
    Unlike President Biden, Donald Trump flagrantly took and 
concealed highly classified documents. Mr. Trump's actions are 
extremely serious and warranted the 32 counts of Willful 
Retention of National Defense Information, Conspiracy to 
Obstruct Justice, and Making False Statements on which he was 
charged.\118\ The Majority's efforts to conflate the two cases 
is morally bankrupt and dishonest. It also shows that it is in 
fact the Majority that seeks to discredit and undermine the 
fair administration of justice.
---------------------------------------------------------------------------
    \118\On July 15, 2024, Judge Aileen Cannon dismissed the classified 
documents case against former President Trump, ruling that Special 
Counsel Smith's appointment was unconstitutional. See Alan Fueur, Judge 
Dismisses Classified Documents Case Against Trump, New York Times (Jul. 
15, 2024). In dismissing the charges against Donald Trump in this case, 
Judge Cannon relied entirely on what she determined were deficiencies 
in the appointment of Special Counsel Smith and made no judgments as to 
the merits of the underlying charges. The Eleventh Circuit Court of 
Appeals has previously overruled Judge Cannon's decisions in this case, 
see Alan Feuer and Eileen Sullivan, Dismissal Brings New Scrutiny to 
Judge With a History of Unorthodox Decisions, New York Times (Jul. 15, 
2024), and the Justice Department is expected to appeal her dismissal 
of the case.
---------------------------------------------------------------------------
    The Majority also states that it needs the materials to 
assess potential reforms to the ``willfulness standard'' for 
disclosing classified information and that it needs to 
ascertain the ``intent, or lack thereof, with which such 
disclosures were made.''\119\ Notably, Special Counsel Hur 
reviewed all the materials in Mr. Zwonitzer's possession 
(sought by this Committee), which were produced to the 
Department. Hur extensively considered ``willfulness'' and 
``intent'' before determining that President Biden and Mr. 
Zwonitzer would not be charged with committing a crime. 
Congress, however, is not ``a law enforcement or trial 
agency.''\120\ ``These are functions of the executive and 
judicial departments of government.''\121\ The Majority should 
stop pretending that re-investigating Special Counsel Hur's 
closed investigation and exercise of prosecutorial discretion 
is a legitimate exercise of its oversight function.
---------------------------------------------------------------------------
    \119\Id.
    \120\Watkins v. United States, 354 U.S. 178, 187 (U.S. 1957).
    \121\Id.
---------------------------------------------------------------------------
    Finally, the Majority has alleged that it needs the files 
to ``consider legislative reforms governing criminal penalties 
for destroying evidence''--a veiled threat against Mr. 
Zwonitzer, despite his full cooperation with Special Counsel 
Hur's extensive investigation. The record demonstrates that Mr. 
Zwonitzer gave innocent, plausible explanations for deleting 
some of the audio files. He did not believe the investigation 
would involve him, and he deleted the files to protect 
President Biden's privacy, as was his practice, especially 
because he believed hackers may try to obtain the files from 
his computer to attack the President. As soon as the Special 
Counsel and his team asked for the files, Mr. Zwonitzer 
provided full transcripts. He also turned over his computer and 
hard drive to let investigators recover the files that had been 
deleted. For each of the four files that were not able to be 
fully recovered, Mr. Zwonitzer voluntarily produced transcripts 
of the interviews to investigators.\122\ Subsequently, 
``Zwonitzer gave two consensual interviews during which he 
provided relevant information without seeking immunity or any 
protections or assurances (such as a proffer agreement).''\123\ 
Special Counsel Hur, taking all these factors into account, 
found that prosecution was not warranted. With the decision not 
to prosecute having been made, the Majority's so-called 
``legislative purpose'' of reviewing penalties for destroying 
evidence is a complete farce.
---------------------------------------------------------------------------
    \122\Hur Report at 335-336.
    \123\Id. at 336.
---------------------------------------------------------------------------
    The true purpose of the Committee's obsession over these 
materials is not lost on anybody on this Committee or to the 
American public. The Majority has embarked on this fanatical 
quest to find private audio tapes it thinks may embarrass a 
presidential candidate months away from the election.

                           D. FIRST AMENDMENT

    Republican members of this Committee have ironically chosen 
to attack a journalist for refusing to reveal his source 
materials, even though many of these same members support 
legislation to protect journalists from similar abuses by the 
federal government. Specifically, the past several Congresses 
have previously considered bills to create a federal reporter 
shield. The ``Free Flow of Information Act'' was first 
introduced in the House on February 2, 2005, by then-
Representative Mike Pence (R-IN). Since then, versions of the 
legislation have been reintroduced over multiple Congresses by 
both Republican and Democratic Members. In the 118th Congress, 
Reps. Kevin Kiley (R-CA), Darrell Issa (R-CA), Harriet Hageman 
(R-WY), Russell Fry (R-SC), Jamie Raskin (D-MD), and Ted Lieu 
(D-CA), among others, introduced H.R. 4250, the ``Protect 
Reporters from Exploitative State Spying Act'' or the ``PRESS 
Act,'' which is essentially an updated version of the ``Free 
Flow of Information Act.''
    H.R. 4250 would create a qualified federal statutory 
privilege that protects covered journalists from being 
compelled by a federal entity (i.e., an entity or employee of 
the judicial or executive branch of the federal government with 
power to issue a subpoena or other compulsory process) to 
reveal confidential sources and information. The federal entity 
seeking to compel disclosure of protected information can 
defeat this privilege if a court determines, after providing 
the journalist notice and an opportunity to be heard in court, 
that the disclosure is necessary to prevent or identify any 
perpetrator of an act of terrorism or to prevent a threat of 
imminent violence, significant bodily harm, or death.
    The PRESS Act enjoys broad bipartisan support. In July 
2023, the House Judiciary Committee passed H.R. 4250 by a vote 
of 23-0. In January 2024, the House passed H.R. 4250 by voice 
vote under a motion to suspend the rules. It is curious why 
now, when President Biden is the topic of journalism, 
Republican members of this Committee change their tune despite 
his support for the principles espoused by the PRESS Act.

                             IV. Amendments

    During the markup of this report, the Minority offered 
various amendments to correct or provide context to the highly 
partisan language of the report, which were all defeated on 
party lines.
    Representative Steve Cohen (D-TN) offered an amendment that 
raised concerns that the audio files may be manipulated for 
political purposes and highlighted Republicans' repeated 
circulation of deceptively manipulated ``cheap fake'' videos 
targeting President Biden. The amendment provides three recent 
examples of this practice, including a deceptively edited video 
of President Biden at a D-Day commemoration ceremony in France 
and two deceptively edited videos of President Biden at the G7 
Summit in Italy.
    Representative Lucy McBath (D-GA) offered an amendment that 
highlighted this committee's support for the PRESS Act, which 
would create a qualified federal statutory privilege that 
protects covered journalists from being compelled by a federal 
entity to reveal confidential sources and information, and 
specifically notes the hypocrisy of Chairman Jordan's demands 
of Mr. Zwonitzer, who considers himself a journalist.
    Representative Madeleine Dean (D-PA) offered an amendment 
stating that ``no portions of the audio files shall be released 
to the public or used in any campaign materials by Members of 
Congress seeking reelection.'' It is telling that the Majority 
rejected this opportunity to prove to the American people that 
its intentions are legitimate and not political.
    Representative Veronica Escobar (D-TX) offered an amendment 
showing that Mr. Zwonitzer had innocent reasons for deleting 
the audio files of his interviews with President Biden, which 
were detailed in Special Counsel Hur's February 2024 report. 
The amendment also noted that Mr. Zwonitzer fully cooperated 
with Special Counsel Hur's investigation.
    Representative Henry C. ``Hank'' Johnson (D-GA) offered an 
amendment that discussed Jared Kushner's memoir, Breaking 
History, which claims to take readers ``inside debates in the 
Oval Office, double-crosses at the United Nations, tense 
meetings in Arab palaces, high-stakes negotiations, and the 
daily barrage of leaks, false allegations, investigations, and 
West Wing infighting.'' Like President Biden, Kushner's memoir 
was written with the help of a ghostwriter, who is identified 
in the book's acknowledgements as speechwriter Brittany 
Baldwin. The amendment noted that materials created during the 
process of writing of his memoir, including the ghostwriter's 
notes and audio recordings, could contain evidence that is 
relevant to an investigation into the troubling overlap between 
Jared Kushner's business interests and US foreign policy.
    Representative Johnson also offered 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, the amendment detailed nonsensical comments 
that Trump has made at recent rallies, including a bizarre rant 
about whether it was better to be electrocuted or be attacked 
by a shark. 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.

                             V. Conclusion

    After striking out on all previous attempts to find 
evidence of wrongdoing by President Biden, the Majority has now 
sunk to a new low by attempting to bully a private citizen into 
turning over materials that it hopes may embarrass the 
President, months before he stands for reelection. Special 
Counsel Hur conducted an exhaustive investigation that 
exonerated President Biden of wrongdoing and the Committee has 
no legislative purpose in reinvestigating the Special Counsel's 
work.
    To the extent that there may be any legitimate interest in 
obtaining Mr. Zwonitzer's interviews, the vast majority of 
which are private, they are in the possession of the Department 
of Justice, but the Majority has refused to engage in the 
constitutionally required accommodation process, despite the 
weighty separation of powers issues raised by these materials. 
Indeed, the White House has specifically directed Mr. Zwonitzer 
not to provide any of the President's information until this 
``interbranch conflict'' can be resolved. But the Majority has 
barreled ahead with this contempt report because this is not a 
legitimate oversight exercise and is merely another political 
stunt that is far beneath the dignity of this Committee.

                                            Jerrold Nadler,
                                                    Ranking Member.

                                  [all]