WASHINGTON (AP) — President Joe Biden avoided criminal charges around his handling of classified documents in part because of his answers during a lengthy interview with the special counsel investigating him. But the sit-down also opened Biden up to fresh scrutiny over his age and memory, and now the public release of a transcript of that discussion is being sought by both Biden allies and critics seeking political advantage.
The five-hour interview over two days, led by special counsel Robert Hur, helped establish that Biden didn't intend to retain most of the sensitive records from his vice presidency that were found at his home and personal office. But Hur's report also repeatedly impugned Biden's memory in a deeply personal way, suggesting, for example, the president couldn't remember when his own son had died.
The transcript, if released, could provide a fuller picture of the conversation.
The White House has the ultimate say over whether to make public the transcript or audio recording of the interview or to claim executive privilege and keep the interview private. There's precedent for documents related to White House investigations to ultimately become public — but also to be withheld.
A transcript of President Bill Clinton's 1998 grand jury appearance related to allegations of a sexual relationship with intern Monica Lewinsky was included as part of Independent Counsel Ken Starr's massive report, which was delivered to the House and subsequently released to the public by Congress following a vote.
The Starr team debated extensively how much to disclose in the report, mindful of the graphic and sensitive nature of the findings, said Robert Bittman, who served as a Starr deputy during the investigation. Recognizing that it was ultimately up to the House to decide what to public public, the team gave "all the information (to Congress) that we had so they can make their own decisions."
President George W. Bush, on the other hand, invoked executive privilege to block Congress from seeing the FBI report of an interview with Vice President Dick Cheney and other records related to the administration's leak of CIA operative Valerie Plame's identity in 2003. The move angered Congress.
Bittman said he did not think it was "necessarily a good thing" for investigative reports to be made public. But now that the Hur report has been disclosed, he said, it would be helpful to release the transcript of Biden's interview "so that people can judge for themselves about whether Hur's opinions about what President Biden said and what he remembered and what he didn't remember is justified."
"If you see that the White House objects to it, it probably suggests that the transcripts are not good for the White House," Bittman said, "and if they support release of it, then I suspect that that suggests the transcripts are good for the White House or President Biden."
The White House is weighing whether or not to release it.
Biden's interview text and the audio recording are classified, because they include a discussion of highly sensitive documents. Any potential release could happen either by a decision of the White House or through the Justice Department working to comply with congressional oversight requests. Both would follow nearly identical procedures.
Once a decision to pursue release of the interview was made, the sensitive parts of the document would be sent to the intelligence community to assess what could be declassified and what would need to be redacted. A further review would be warranted to determine if anything discussed about the security of the president's home might impact protective measures.
Finally, the White House would need to weigh in, with the advice of the Justice Department's Office of Legal Counsel, on whether to recommend that Biden invoke executive privilege over what others had cleared for publication.
Though Biden didn't invoke executive privilege over the full report, the transcript could well be a different story. Among the documents found in Biden's home were records of deliberations over a potential U.S. troop surge during the Afghanistan war and other conversations within the White House — an area that presidents are particularly loath to have publicly discussed.
The interview with Biden was conducted over two days last October, right after Hamas' brutal attack on Israel.
Hur and his deputy, Marc Krickbaum, a former Trump-appointed U.S. attorney from Iowa, asked all of the questions. Biden was joined by White House Counsel Ed Siskel, the counsel's office investigations leader Richard Sauber and the president's personal lawyer Bob Bauer. Several other individuals from both sides were in the room as well, according to a person familiar with the interviews who spoke to The Associated Press on condition of anonymity to discuss them.
Separately, House Republicans have reached out to Hur and his representatives on the possibility of Hur testifying before Congress, and he has expressed a willingness to do so, according to two people who were not authorized to speak publicly about the request and spoke on condition of anonymity.
Republicans and Democrats alike are interested in more complete details about what went into the report. Biden and his allies say a full transcript would show the president is mentally sharp and will prove that Hur cherry-picked moments solely to make him seem feeble. Biden's attorneys raised their concerns to Attorney General Merrick Garland, who nonetheless decided to keep the report as is and made it public.
Bauer, speaking on CBS's "Face the Nation" over the weekend, offered an anecdote that didn't make it into the report but that would be in a transcript. He said Hur acknowledged that sometimes he asked imprecise questions — ones that Biden picked apart.
"Now, everybody in the room recognized that was the case, that showed the president was listening carefully and understood precisely what was wrong with those questions," Bauer said. "I didn't come away from the special counsel's failure to ask precise questions and think to myself, 'he has mental acuity problems,' I just thought he was asking bad questions."
Republicans, meanwhile, have also requested that the audio of the interviews be made public and want to know more on why Hur chose not to prosecute Biden, particularly when they noted in their report that some evidence showed he held onto and shared with a ghostwriter highly classified information.
Hur said in his report that he did find evidence that Biden had willfully mishandled classified records but not enough evidence for a criminal prosecution like the one against former President Donald Trump.
Trump, in addition to being charged with intentionally hoarding top-secret documents after he left office, is also accused of obstructing FBI efforts to get them back and of asking staff to conceal evidence from investigators.
Biden and his team, by contrast, alerted law enforcement officials after locating classified records, willingly handed over documents to the government and cooperated with investigators by allowing the FBI to search his properties for any additional files.
Those voluntary searches stand apart from the FBI's search of Trump's Mar-a-Lago property in 2022, which was done after the FBI got a warrant for the home when it determined that additional classified records were being hidden there. Trump has denied any wrongdoing.