In a 2-1 decision on Monday, a panel of three judges at the U.S. Court of Appeals for the District of Columbia (DC) Circuit rejected Biden’s effort to stop the Heritage Foundation from obtaining the materials under the Freedom of Information Act (FOIA).
In an unsigned opinion, Judges Sri Srinivasan and Gregory Katsas stated, “We conclude that Biden has not shown a likelihood that the requested materials must be withheld from disclosure.”
“We conclude that any remaining incursion on personal privacy from disclosure of the now-redacted materials likely does not outweigh the public interest in disclosure,” Srinivasan and Katsas continued. “In that regard, although there is generally a substantial privacy interest in not being identified as the target of an investigation that results in no charges … [the] DOJ announced the Special Counsel’s appointment and the purpose of his investigation, and the Special Counsel Report describes at length that Biden was investigated for allegedly retaining and disclosing classified materials.”
They explained that the materials would affect the investigation and the ultimate decision, therefore making them “likely to advance the public interest at stake.”
Judge Florence Pan wrote in her dissent that the D.C. Circuit’s decision “will result in the premature release of Biden’s concededly private conversations.”
“In my view, Biden has shown a substantial privacy interest,” Pan wrote. “The conversations at issue took place in Biden’s home, and the recordings of them were obtained by the government in the course of a criminal investigation that did not lead to an indictment.”
The investigation began in 2022, when the first batch of documents was found at the Penn Biden Center, a Washington think-tank where Biden had an office after serving as vice president. Biden’s attorneys notified the National Archives, which alerted the DOJ, leading to searches that uncovered more classified documents stored in the garage, offices and basement of Biden’s home in Delaware.
U.S. Attorney Robert Hur was appointed as special counsel in 2023 to investigate whether Biden had violated the law. His report concluded that there was evidence that Biden had retained classified documents relating to military and foreign policy, kept notebooks containing writings about national security that included classified information and allegedly disclosed classified information to his ghostwriter while working on his memoir after leaving office.
Biden met multiple times with author Mark Zwonitzer, who ghostwrote his 2017 memoir, “Promise Me, Dad,” after he served as vice president under former President Barack Obama. These discussions later became part of the Justice Department’s investigation into Biden.
Hur later concluded that criminal charges were not warranted against Biden due to the difficulty of proving Biden intentionally violated the law, plausible defenses Biden could have raised about how he came to possess the documents and his cooperation with investigators.
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