Former US Attorney General Michael Mukasey recently criticized current Attorney General Merrick Garland for what he termed a “flawed privilege assertion” in withholding audio recordings from Congress related to President Biden’s interview with special counsel Robert Hur. Mukasey, who served in the Bush administration from 2007 to 2009, expressed his disagreement in a filed declaration in a Washington, DC federal court, arguing against Garland’s decision to withhold the recordings.
In his declaration, Mukasey referenced a 2008 letter he authored during his tenure, which Garland had relied upon to assert executive privilege. Mukasey pointed out that Garland’s application of executive privilege in this instance exceeded previous limits and was not adequately supported by the 2008 letter or other relevant precedents. He emphasized the importance of executive privilege in protecting sensitive information but criticized Garland for potentially overstepping its bounds.
Mukasey underscored that the transcript of President Biden’s interview had already been released, questioning the justification for withholding the audio recordings. He argued that the recordings could provide further insight into the president’s “mental acuity” and other qualities relevant to Hur’s decision not to pursue charges earlier in the year.
Moreover, Mukasey highlighted differences between the contexts of Biden’s interview and previous instances where executive privilege had been invoked, such as during investigations involving official White House actions versus private matters. He noted that Biden himself had chosen to release the interview transcript, diminishing any expectation of confidentiality.
The former AG asserted that public interest in transparency outweighed potential privacy concerns of the president, especially given Biden’s decision to disclose the transcript. Mukasey also criticized Garland’s concern that releasing the recordings could discourage future witness cooperation, noting that his 2008 letter had only addressed this issue in the context of investigations involving official White House actions.
The dispute over the recordings had led to legal actions, including lawsuits from conservative groups and congressional attempts to enforce a subpoena against Garland. In response, House Republicans, under the leadership of Speaker Mike Johnson, pursued contempt of Congress charges against Garland, although the Justice Department opted not to prosecute.
Overall, Mukasey’s critique centered on maintaining the proper boundaries of executive privilege while advocating for transparency in government proceedings, particularly regarding matters of public interest and accountability. His declaration reflected broader concerns over the interpretation and application of executive privilege in the current administration.