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Republicans want to hear shielded interview tapes of Biden. Here’s what we know about the recordings

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(WASHINGTON) — Republican lawmakers say the Biden administration is refusing to release a set of audio recordings that could help settle the debate over whether President Joe Biden’s faltering performance at last month’s presidential debate was just a one-off “bad night,” as he has repeatedly claimed.

“We all know why they don’t want to turn over the audio because it will … show exactly what we all saw on the debate stage a couple weeks ago,” House Speaker Mike Johnson, R-Louisiana, told reporters on Tuesday. “That is something they want to cover up.”

The recordings capture Biden’s two-day interview last October with then-special counsel Robert Hur, who ultimately concluded that while Biden improperly retained classified documents, he shouldn’t be charged with any crimes because — unlike former president Donald Trump, who was indicted for allegedly hoarding hundreds of classified documents and then trying to cover it up — Biden cooperated with investigators and would likely convince a jury that he made “an innocent mistake.” Trump, meanwhile, has denied all charges.

Nearly two years ago, caches of classified documents from Biden’s time in the Obama administration and the Senate were found in his Delaware home and in private offices elsewhere, prompting Hur’s probe.

In his recorded interview with investigators, Biden appeared to be a “well-meaning, elderly man with a poor memory,” and that’s how he would likely appear to a jury, Hur wrote in his final report.

Democrats and the White House immediately blasted Hur for making what they insisted were unfair and inaccurate conclusions. Republican lawmakers, meanwhile, demanded the audio recordings, claiming that to fulfill their oversight responsibilities they wanted to assess for themselves the evidence that Hur used to reach his conclusions.

White House Counsel Ed Siskel later said Republicans had no “legitimate need” for the recordings and likely only wanted them to “chop them up, distort them, and use them for partisan political purposes.”

In response to Republican demands, the Justice Department released a transcript of Biden’s interview to Congress, but Biden — at Attorney General Merrick Garland’s behest — asserted executive privilege over the recordings to shield them from release.

Then the presidential debate happened — raising new questions over whether Biden could handle another four years as commander-in-chief.

“Most of us are concerned … about President Biden’s health,” Sen. Lindsey Graham, R-South Carolina, told CBS News on Sunday. “I want those tapes released.”

As early as this week, Rep. Anna Paulina Luna, R-Fla., could try to push forward a resolution she drafted to hold Garland in “inherent contempt” of Congress, which Luna has said would draw on rarely-used legislative branch authority to fine Garland $10,000 a day until he hands over the recordings.

Her effort is controversial even within Republican ranks, and it’s unclear if it would succeed. But if it did, the Justice Department could try to challenge it in court.

A Justice Department spokeswoman declined to comment for this story, and the White House counsel’s office did not respond to questions from ABC News, including whether Biden would now consider allowing the recordings to be released.

What could the recordings show?

Testifying before lawmakers in March, Hur said that the recordings of Biden’s interview — which began the day after Hamas launched its large-scale attack on Israel — “were part of the evidence, of course, that I considered in coming to my conclusions.”

Hur’s conclusions were blunt: The president showed “diminished faculties and faulty memory” during his five hours with Hur’s team, at times exhibiting “limited precision and recall,” Hur wrote in his final report.

Even six years earlier, in recorded conversations with a ghostwriter that Hur obtained, Biden was “often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries,” Hur wrote. “In his interview with our office, Mr. Biden’s memory was worse.”

Hur, in his final report, wrote, “It would be difficult to convince a jury that they should convict [Biden] … of a serious felony that requires a mental state of willfulness.”

Republicans say Americans who are worried about Biden’s fitness for office deserve more than a written report and a transcript.

Last week, the Republican-led House Judiciary Committee filed a federal lawsuit in Washington to obtain the recordings, saying that there are “inherent limits of a cold transcript” and that audio recordings can provide “verbal and nonverbal context” such as tone and pace.

“The audio recordings, not the cold transcripts, are the best available evidence of how President Biden presented himself during the interview,” the lawsuit says. “The Committee thus needs those recordings to assess the Special Counsel’s characterization of the President, which he and White House lawyers have forcefully disputed.”

Republican lawmakers aren’t the only ones pushing for the recordings to be released.

In March, the conservative groups Judicial Watch and The Heritage Foundation filed federal lawsuits in Washington seeking the recordings and other case materials under the Freedom of Information Act. Shortly afterward, CNN filed a similar lawsuit, which a dozen other news organizations, including ABC News, then joined.

“The subsequent release of the interview transcript has made it possible for the press and public to somewhat assess Hur’s description of Biden for themselves,” the lawsuit says. “Transcripts, however, are no substitute for recordings, which reveal ‘intonations, hesitancies, inflections, and tone of voice."”

It’s unclear if any of the legal cases could be resolved before the presidential election in November.

A ‘chilling’ effect?

In May, after Garland recommended it, Biden asserted executive privilege over the recordings.

Then, last month, the Republican majority in the House referred Garland to the Justice Department for prosecution after Garland refused to turn over the recordings despite a congressional subpoena. But the Justice Department declined to move forward with the case.

According to the Justice Department, the law enforcement interest in keeping the recordings private outweighs any other public interest.

In particular, releasing the audio recordings could “chill witness cooperation in future, high-profile investigations,” Garland has said.

“It is our view that we need witnesses to be willing to be audio recorded and they are going to be less willing to if they know it is going to be made public,” Garland told lawmakers last month.

Biden’s case, however, is unique: For him, the interviewee is the one with the authority to waive executive privilege, which would essentially give the Justice Department permission to release the recordings of himself.

Nevertheless, the Justice Department has also pointed to another law enforcement interest in keeping the recordings private: concern that enemies of the United States could manipulate them.

“If the recording of President Biden’s interview were released, there is substantial risk that malicious actors could alter the record to (for example) insert words that President Biden did not say or delete words that he did say,” a senior Justice Department official wrote in a declaration submitted in court in May.

Using widely available technologies, malicious actors could even “create an audio deepfake in which a fake voice of President Biden can be programmed to say anything that the creator of the deepfake wishes,” the official added.

Meanwhile, Garland told Republicans last month that he has “not been shown any reason why audio evidence of demeanor would make a difference in any legislative purpose that you have.”

“You have yet to suggest any law that you intend to pass or are thinking about in which the audio would make a difference over the transcript,” he said.

In their lawsuit, House Republicans called Biden’s executive privilege claim a “self-serving attempt to shield the audio recording” from becoming public.

“Any privilege that could conceivably apply to President Biden’s interview with the Special Counsel was waived when the Executive Branch released a transcript of that interview,” the lawsuit argued.

The Justice Department has until the end of next month to respond to the suit.

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