DOJ and Lawmakers Assert Judge’s Authority Over Biden in Audiotape Dispute

Attorneys representing the House Judiciary Committee have informed a federal judge that former President Joe Biden, described as a “third-party actor,” lacks the authority to halt the Trump administration from releasing evidence related to a classified documents investigation. This probe concluded without any charges being filed.

The committee, under the leadership of Rep. Jim Jordan, R-Ohio, submitted their filing punctually to U.S. District Judge Tanya Chutkan’s court in Washington, D.C., on Monday. Judge Chutkan, appointed by Barack Obama and presiding over Trump’s Jan. 6 criminal case, had previously determined the committee had the standing to intervene in Biden’s legal action against the Department of Justice.

The crux of the matter involves audio recordings and transcripts of conversations between then-former Vice President Biden and his ghostwriter Mark Zwonitzer during 2016 and 2017, while working on his memoir, “Promise Me, Dad,” a tribute to his son Beau Biden’s 2015 passing from brain cancer.

These recordings were part of an investigation led by former special counsel Robert Hur into classified documents. The inquiry found evidence suggesting that Biden “willfully retained and disclosed classified materials” after his tenure as vice president. However, due to various factors, including Biden’s advanced age and “poor memory,” no criminal charges were recommended.

Currently, the committee’s expressed interest in subpoenaing the Zwonitzer materials is linked to potential legislative changes concerning the DOJ’s appointment of special counsels.

The filing states, “The Committee seeks these recordings as part of its broader investigation into the Department of Justice’s use of special counsels during the Biden Administration. The aim is to determine whether these investigations upheld impartial justice and, if not, to consider necessary legislative reforms to the DOJ’s special counsel procedures.” It also addresses the perplexity surrounding the plaintiff’s continuous references to the Committee’s “purported request” for the recordings, emphasizing the Committee’s genuine and enduring interest in these materials.

When Hur released his report in 2024, he doubted a jury would convict a “sympathetic, well-meaning, elderly man with a poor memory.” Additionally, DOJ policy ruled out charging a sitting president and the alleged facts were not as serious as those Trump faced in his dismissed Mar-a-Lago classified documents prosecution, Hur said.

For that reason, Biden has argued the subpoenas are “pretextual” and untethered to any “legitimate legislative purpose,” only existing as a way for the Trump DOJ to “circumvent its statutory obligations and its own policy and practice” that counsel against disclosure. In his support, Biden cited Trump v. Mazars USA, the 2020 Supreme Court case on congressional subpoenas for Trump’s tax returns during his first term as president.

“The Department’s exclusive reliance on an invalid ‘request’ lacks a reasoned basis, and the Department’s decision therefore further violates the [Administrative Procedure Act] APA,” the former president asserted, slamming the lack of a “legitimate legislative purpose.”

On Monday, both the committee and the DOJ said Biden had no business citing Mazars in his favor, considering he is not the current president and the legislative and executive branches are aligned.

“At bottom, if this Court were to adopt Plaintiff’s interpretation of Mazars, it would greatly extend its reach and bestow heightened protection from Congressional requests (and subpoenas) for the entirety of any President’s life (not just Plaintiff), regardless if the records sought relate to the President’s pre-Presidential or post-Presidential life. Nothing in Mazars suggests that was the Supreme Court’s intent, and this Court’s adoption of such a view would have ramifications for all future Congresses,” the committee warned.

Likewise, the DOJ called Biden’s motion an “extraordinary” bid to convince a judge to block “appropriately redacted information that both political branches agreed would aid Congress in carrying out its constitutional functions consistent with the interests of the Executive Branch” from being disclosed.

“No such law exists for good reason, as there is no legal basis for private parties to challenge inter-branch information sharing,” the DOJ told Chutkan.

Also on Monday, U.S. District Judge Dabney Friedrich ordered the DOJ to provide by midday Tuesday “a copy of the Zwonitzer materials—as the defendant intends to release them to the plaintiffs” so she can inspect the documents in her chambers.

Friedrich, a Trump appointee, is handling the Heritage Foundation’s distinct but related Freedom of Information Act lawsuit, in which Biden is an intervenor seeking an injunction against the Trump administration before a June 15 disclosure deadline. Although Biden’s special counsel interview was eventually released in May 2025, the Heritage Foundation is still trying to obtain the Zwonitzer materials in audio and transcript form.

Conservative groups’ lawsuits to obtain audiotapes from the special counsel investigation began in the latter days of Biden’s presidency. Former U.S. Attorney General Merrick Garland’s DOJ repeatedly opposed disclosure, arguing that bad actors might create “deepfakes” of the president as he was running for reelection. The arguments were made even after Biden’s debate debacle but before he officially announced he would not run.

One day after Biden dropped out, the DOJ said it “learned” of “verbatim” transcripts of the Zwonitzer recordings.

Biden has claimed that the DOJ’s redactions of “sensitive, personal information” about him and his family “are wholly inadequate to protect the privacy interests of President Biden and of third parties.” The DOJ, on the other hand, represented that “information concerning President Biden’s family” health issues “has been fully redacted” and “[i]nformation concerning individuals who are not public figures has been redacted.”

Chapter 17 of Hur’s report specifically addressed the fact that the Zwonitzer tapes were once “deleted” but recovered due to the ghostwriter’s candor. Once recovered, the special counsel said, the materials provided “significant evidentiary value” in the probe of documents on U.S. “military and foreign policy in Afghanistan.” Hur’s report further characterized the ghostwriter sessions as “often painfully slow,” with the then-former vice president “struggling to remember events” and “straining at times to read and relay his own notebook entries” several years before he was elected president.