Biden sues DOJ to block release of Hur ghostwriter audio

Joe Biden filed suit in the U.S. District Court for the District of Columbia on May 27, 2026, asking a judge to block the Department of Justice from releasing approximately 70 hours of audio recordings and transcripts of his private conversations with ghostwriter Mark Zwonitzer. The recordings were made at Biden's Delaware home in 2016 and 2017 as Zwonitzer helped Biden write his memoir, "Promise Me, Dad: A Year of Hope, Hardship, and Purpose," published in November 2017.

Special Counsel Robert Hur obtained the recordings in 2023 as part of his investigation into Biden's handling of classified documents. Hur's 388-page report, released February 8, 2024, concluded Biden had willfully retained and disclosed classified materials after his vice presidency but recommended no criminal charges, citing Biden's cooperation and noting his memory lapses.

Mark Zwonitzer isn't just any ghostwriter. He's a prolific collaborator who has worked with prominent political figures on their memoirs, and he developed a method of recording hours of informal home conversations before shaping them into prose. The Zwonitzer sessions with Biden were different from a formal interview. Biden talked through his grief over Beau Biden's death from brain cancer in May 2015 and his agonizing decision not to run for president that same year, made less than two months after Beau died. Beau reportedly told his father before he died, "Promise me, Dad. Promise me you're going to be OK" -- the line that became the memoir's title.

Those recordings weren't policy discussions or official government business. They were the private grief of a father who hadn't yet re-entered public life. Biden's lawyers argue that distinction is central to the legal case: recordings of personal conversations, made for a memoir, captured in Biden's private home, deserve stronger privacy protection than government records.

The was signed by President Lyndon Johnson on July 4, 1966, but not willingly. Johnson called the bill a threat to executive secrecy, and when aides pushed him to sign it, he reportedly told his press secretary: "What is Moss trying to do, screw me? I thought he was one of our boys, but the Justice Department tells me his goddamn bill will screw the Johnson Administration." Johnson refused to hold a signing ceremony and removed strong openness language from the press statement. He only approved the bill after the Justice Department drafted a signing statement that undercut the law's thrust.

"Moss" was Rep. John Moss (D-CA), a freshman congressman who began fighting for a public-records law in 1955 after he couldn't get information from the Eisenhower administration about federal employees fired during the McCarthy red scare. Moss spent 12 years lobbying for FOIA, enduring opposition from executive agencies in both Republican and Democratic administrations, before the law finally passed.

FOIA's original 1966 version was a weak instrument. It had no enforcement mechanism, no deadlines for agency responses, and no penalty for stonewalling. The 1974 amendments transformed the law into something with real teeth. Congress passed those amendments after the Watergate scandal revealed that the Nixon administration had used government secrecy to conceal criminal conduct. President Gerald Ford vetoed the amendments in October 1974, arguing they posed "serious constitutional questions" by allowing courts to override executive classification decisions.

The House overrode Ford's veto 371 to 31 on November 21, 1974. The 1974 amendments set mandatory response timelines, required agencies to publish records indices, gave federal judges power to review classified documents in private, and established the D.C. federal district court as a universal venue for FOIA lawsuits. Those enforcement mechanisms are what make FOIA litigation like the Heritage Foundation's suit possible today.

The Heritage Foundation, a conservative think tank, sued for the recordings in 2024 under the Freedom of Information Act. The Biden-era DOJ opposed disclosure, maintaining the materials were exempt under FOIA Exemption 6 -- which protects personal information whose release would constitute a clearly unwarranted invasion of privacy -- and Exemption 7(C), which covers law-enforcement records whose release could constitute an unwarranted invasion of personal privacy.

The Trump DOJ reversed that position in February 2026 without any formal explanation. On May 5, 2026, the Office of the Deputy Attorney General notified Biden through counsel that the department had made its final decision to release the materials, with limited redactions, to the Heritage Foundation and the House Judiciary Committee on June 15.

The man running the Heritage Foundation's legal campaign is Mike Howell, who served as Chief Legal Point of Contact for congressional oversight at the Department of Homeland Security during the first Trump administration before joining Heritage. Howell now leads the Oversight Project, which has filed more than 100,000 FOIA requests and nearly 100 lawsuits targeting government agencies. The Oversight Project filed the Biden audio FOIA request in 2024 as part of an explicit effort to build a public record of Biden's cognitive state.

Howell said publicly that releasing the recordings would let Americans assess Biden's mental acuity in his own voice. Biden's lawyers counter that Hur's written report already addressed that question, and that releasing private audio of a father grieving his son's death adds no legitimate public-interest information beyond what the written transcript provides.

Biden's May 27 lawsuit was the second of two legal moves. On May 12, Biden's lawyers had filed a motion to intervene in the existing Heritage Foundation v. DOJ case (Case No. 24-645, U.S. District Court for D.C.). On May 21, the court granted partial intervention -- allowing Biden to challenge disclosure to the Heritage plaintiffs -- but denied Biden's cross-claims regarding disclosure to the House Judiciary Committee, ruling that an intervenor can't enlarge the issues before the court.

Because the court's May 21 ruling left the House Judiciary Committee release unaddressed, Biden's attorneys filed the separate May 27 lawsuit to block both disclosures. The case is now before the D.C. federal district court.

Biden's attorney Amy Jeffress argued in the complaint that the DOJ's reversal, executed without explanation, violates Biden's and departs from department norms. "Every American, including a sitting or former Vice President, has a right to privacy in the personal conversations he has within his own home," Jeffress wrote. "And when the U.S. Department of Justice obtains that private information through a criminal investigation, the Department bears a particular responsibility to protect it from disclosure."

The lawsuit invokes the Administrative Procedure Act's arbitrary-and-capricious standard. Under FCC v. Fox Television Stations (2009), the Supreme Court held that agencies changing their position must "display awareness that they are changing position" and provide a reasoned explanation. Biden's lawyers argue the Trump DOJ's silent reversal fails that standard. If a court agrees, it could require DOJ to produce its underlying reasoning -- and a reversal grounded in explicitly political motivation could be struck down.

FOIA's Exemption 6 requires agencies to balance the individual's privacy interest against the public interest in disclosure. Courts weigh whether disclosure would shed light on agency operations. The core legal question Biden's lawsuit poses is whether recordings of a former vice president's private home conversations -- made for a personal memoir, obtained only through a criminal investigation -- serve a legitimate public interest beyond embarrassing the subject.

FOIA courts have generally held that personal information about a private individual's home life doesn't lose its privacy protection simply because the government now holds it. Biden's lawyers argue the recordings are closer to personal journals than to agency records, and that their release would set a precedent allowing any new administration to selectively expose private materials obtained by its predecessor during criminal investigations that resulted in no charges.

The outcome of Biden's lawsuit could set precedent for how much privacy protection former presidents and vice presidents retain over materials obtained from them during criminal investigations. A ruling in Biden's favor would affirm that FOIA exemptions negotiated with one administration can't be unilaterally reversed by a successor without a documented legal rationale. A ruling against Biden would establish that a sitting administration controls FOIA determinations over any prior administration's materials -- a significant expansion of executive discretion with implications for every future president whose records a successor administration decides to expose.