Appeals Court Rejects Biden’s Effort to Block Release of Memoir Interview Recordings

A federal appeals panel has denied former President Joe Biden’s emergency request to block the release of audio recordings and transcripts from interviews he conducted with his memoir ghostwriter, Mark Zwonitzer, prior to his presidency. The 2-1 decision, issued Monday by the D.C. Circuit Court of Appeals, allows these materials to be disclosed to the Heritage Foundation and the House Judiciary Committee, unless Biden pursues further appeal.

The ruling brings renewed attention to Biden’s handling of classified materials and the transparency of records tied to a high-profile special counsel investigation. The decision could have significant implications for public access to information about the conduct of high-ranking officials and the processes surrounding federal investigations.

Background: The Special Counsel Investigation

The legal dispute traces back to Special Counsel Robert Hur’s investigation into Biden’s retention of classified documents from his vice presidency. Hur was appointed by then-Attorney General Merrick Garland to examine whether Biden had improperly kept sensitive records after leaving office. The probe concluded earlier this year, finding that no criminal charges were warranted. Prosecutors cited, among other factors, Biden’s presentation as a sympathetic, elderly man with memory issues, which they said would make conviction unlikely.

During the investigation, the Justice Department obtained audio recordings and transcripts of Biden’s interviews with Zwonitzer. These materials were acquired under an agreement that limited their use to the special counsel’s inquiry. However, after Hur’s report was released, the Heritage Foundation and its Oversight Project president, Mike Howell, filed a lawsuit under the Freedom of Information Act (FOIA) seeking access to the recordings and transcripts. The House Judiciary Committee also sought the materials, citing congressional oversight responsibilities.

The Appeals Court Decision

The D.C. Circuit panel’s majority—Chief Judge Sri Srinivasan and Judge Gregory Katsas—found that Biden had not shown a likelihood of success on the merits or irreparable harm, both of which are required to justify an injunction blocking release. The court determined that, although the interview materials were not originally government records, they became subject to FOIA once acquired by the Special Counsel during the investigation.

"We accordingly conclude that Biden has not shown a likelihood that the requested materials must be withheld from disclosure."

— Chief Judge Sri Srinivasan and Judge Gregory Katsas, D.C. Circuit Court of Appeals

The majority also rejected Biden’s argument that the Justice Department’s reversal—deciding to release the materials with redactions—was arbitrary or capricious. The court noted that the DOJ had explained its change in position and had reasonably weighed the interests at stake. The department also made additional redactions before agreeing to disclose the materials, addressing concerns about sensitive content.

The Underlying Legal Battle

Initially, the Justice Department withheld most of the requested materials, citing several FOIA exemptions. However, in February, following a change in administration, the DOJ reversed its position and indicated it would release the recordings and transcripts, with redactions, to the Heritage Foundation and Congress. Biden then sought a preliminary injunction to prevent the release, but the U.S. District Court for the District of Columbia denied his request. The appellate panel has now upheld that decision.

Judge Florence Pan dissented, arguing that the majority applied the wrong legal standard at this stage of the proceedings. She contended that the court should have balanced the equities more flexibly and given greater consideration to the potential for irreparable harm. Pan also raised questions about whether the case might be moot and disagreed with her colleagues’ assessment of Biden’s likelihood of success on the merits.

Fallout From the Hur Investigation

Special Counsel Hur’s report found that Biden had retained records related to foreign policy and sensitive intelligence, but ultimately determined that criminal charges were not warranted. The FOIA lawsuit by the Heritage Foundation aimed to make public the interview materials that played a role in Hur’s investigation. Congressional Republicans and the Heritage Foundation have argued that public access to the recordings is necessary for oversight and transparency, especially given the high-profile nature of the case.

The appeals court’s decision is paused until August 3, giving Biden time to consider further legal action, such as seeking a rehearing or appealing to the Supreme Court. As of now, the Justice Department and Biden’s representatives have not publicly commented on the ruling. The outcome of any further appeals could determine when, or if, the recordings and transcripts become public.

The case underscores ongoing debates over the scope of FOIA, the handling of sensitive government records, and the balance between transparency and privacy for current and former officials. It also highlights the role of the courts in resolving disputes over access to information that could have implications for public understanding of government actions.