A federal appeals court just ruled 2-1 that audio recordings and transcripts of former President Joe Biden's private interviews with his memoir ghostwriter Mark Zwonitzer must be released to Congress and the Heritage Foundation. The court suspended its ruling until August 3 to give Biden time to consider yet another appeal.
The lone dissent came from Judge Florence Pan — a Biden appointee.
The recordings were made in 2016 and 2017 at Biden's home, while Zwonitzer was helping him write two memoirs. They became significant when Special Counsel Robert Hur obtained them during his investigation into Biden's handling of classified documents — the same investigation that ended with Hur declining to file charges citing Biden as a "well-meaning, elderly man with a poor memory."
Republicans in Congress and the Heritage Foundation have been demanding the recordings ever since. Biden's legal team fought the release, arguing the conversations were candid and intended to remain private. He sued to block the Justice Department under President Trump from handing them over.
U.S. District Judge Dabney Friedrich, a Trump nominee, ruled back in June that the public interest outweighed Biden's privacy claims. Biden appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
That appeal just failed. The three-judge panel wrote that "any remaining incursion on personal privacy from disclosure of the now-redacted materials likely does not outweigh the public interest in disclosure," as reported by Newsmax. D.C. Circuit Chief Judge Sri Srinivasan, an Obama appointee, joined Trump appointee Judge Gregory Katsas in the majority. Pan dissented alone.
That lineup matters. When an Obama-appointed chief judge agrees with a Trump appointee that Biden's privacy argument doesn't hold up, the legal ground underneath Biden's position isn't just thin — it's gone. Pan's dissent reads less like a serious constitutional objection and more like a courtesy from the one judge on the panel who owes her seat to the man trying to keep the tapes sealed.
Biden's team will likely frame this as a political witch hunt — powerful Republicans and a conservative organization conspiring to embarrass a former president. But it's hard to argue political bias when two-thirds of the panel includes a judge nominated by Barack Obama. The court didn't split along partisan lines. It split along "the law is clear" lines, with one exception.
The broader question is what's actually on the tapes. Hur's investigation already established that Biden illegally stored classified documents in his garage, his home office, and the Penn Biden Center. The special counsel heard those recordings and decided they were relevant enough to obtain. Congress heard Hur's description of Biden's memory lapses and decided they were relevant enough to demand. Two federal courts have now agreed.
Biden will likely spend the next two weeks weighing whether the contents of those tapes are more damaging released or more damaging fought over in public for another six months.
That's not usually the calculus of someone with nothing to hide.