DOJ position on Biden tapes 'completely irreconcilable' with burial of Mar-a-Lago report and missing 'Attachment A' from Boasberg complaint: Lawyers

Former President Joe Biden late Friday apparently waved the white flag on the ghostwriter tapes and voluntarily dismissed his lawsuit against the DOJ, but could it be a Pyrrhic legal victory for the Trump administration? One prominent conservative columnist and an unrelated court filing on a lingering mystery have warned as much.

Law&Crime recently covered Biden’s losses at the U.S. district court in Washington, D.C., and then at the D.C. Circuit, where the 46th president in vain opposed the release of audiotapes and transcripts to the House Judiciary Committee of him “struggling to remember events” for his memoir in 2017.

The tapes, some “70 hours of audio recordings” of Biden speaking with biographer Mark Zwonitzer regarding “Promise Me, Dad,” were deleted but recovered as part of special counsel Robert Hur’s investigation into Biden’s retention of classified documents about U.S. “military and foreign policy in Afghanistan.”

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The Hur report concluded there was evidence Biden “willfully retained and disclosed classified materials” after his vice presidency. But aside from the issue that DOJ policy ruled out charging a sitting president, Hur said a jury would not convict Biden, a “sympathetic, well-meaning, elderly man with a poor memory” — a “worse” memory than he showed in the Zwonitzer tapes. Hur also noted the classified documents charges then-pending against President Donald Trump involved “serious aggravating” factors that were not present in Biden’s case, like an alleged conspiracy to obstruct the Mar-a-Lago investigators.

At the start of the week, the D.C. Circuit in a 2-1 decision sided against Biden, finding “any remaining incursion on personal privacy from disclosure of the now-redacted materials likely does not outweigh the public interest in disclosure.”

Jeffrey Clark, the former Trump DOJ lawyer hit with ethics probes for playing a pivotal role behind the scenes in Trump’s efforts to overturn the results of the 2020 presidential election, joined the conservative Heritage Foundation’s Freedom of Information Act (FOIA) case months ago.

On Friday, Clark mocked Biden’s “fold and surrender.”

Here’s the sequence of events for my followers and the legal press to understand:

1) We beat Joe Biden’s attempt to keep his ghostwriter tapes and transcripts secret — in federal district court before Judge Dabney Friedrich.

2) Joe Biden took an appeal and he lost 2-1.… https://t.co/V2im4EsvZj

— Jeff Clark (@JeffClarkUS) July 24, 2026

“We will anxiously await the dissolving of the stay and DOJ turning the documents over to us, which we’ve been fighting tooth and nail for since 2024,” Clark said in a post on X (formerly Twitter).

But could the Biden case come back to haunt the Trump administration? At issue are investigative materials from a criminal investigation into a former president that didn’t lead to a conviction. And in Biden’s case, there were no charges.

In a Saturday column in National Review, former federal prosecutor Andrew McCarthy noted the Trump DOJ’s arguments in favor of releasing the Biden tapes under FOIA and simultaneous efforts to bury ex-special counsel Jack Smith’s Mar-a-Lago report on Trump are in “tension.”

Law&Crime has reported how two non-party groups who tried to intervene in Trump’s closed criminal case are appealing at the 11th U.S. Circuit Court of Appeals in the hopes of obtaining Volume II through FOIA.

McCarthy wrote that neither the 11th Circuit Court nor the Supreme Court will miss the government’s “contradictory positions – disclosure when it suits President Trump’s political interests, suppression when it disserves those same interests.”

To that end, a recent notice of supplemental authority in a Maryland federal lawsuit against the DOJ made virtually the same observation this week.

In the notice, the Law and Chaos Podcast, hosted by legal commentator Liz Dye, alerted the court to the D.C. Circuit’s ruling against Biden.

The decision, “while not formally holding as much, fundamentally accepted as a given that records obtained by the Department of Justice regarding a former President were agency records subject to the Freedom of Information Act,” the notice said.

“That opinion, in a case in which DOJ argued in favor of the holding, demonstrates both the fatal flaw in DOJ’s legal argument in this case and the double standard it is asking the Court to endorse: records obtained from non-agencies that DOJ wants to release are agency records, while records obtained from non-agencies that DOJ does not want to release are not,” said the notice, filed by National Security Counselors’ Kelly B. McClanahan.

Even more interesting is the document the plaintiff seeks through FOIA, the missing “Attachment A” from the DOJ’s failed and “uncorroborated” misconduct complaint against Chief U.S. District Judge James Boasberg. A federal judge dismissed that complaint in December as little more than a “repetition of uncorroborated statements.”

The judicial misconduct complaint came after the conservative website The Federalist cited a memo of a non-public March 2025 conference in which Boasberg “raised his colleagues’ concerns that the Administration would disregard rulings of federal courts leading to a constitutional crisis.”

The complaint was submitted with an “Attachment A” — the “one source of evidence” — which the DOJ “did not supply.” Without it, the complaint offered “no source for what, if anything, the subject judge said during the Conference, when he said it, whether he said it in response to a question, whether he said it during the Conference or at another meeting, and whether he expressed these concerns as his own or as those of other judges.”

McClanahan, who has penned op-eds for Law&Crime in the past, told us Friday his notice aimed to show the DOJ’s “two positions are completely irreconcilable.”

“If you read DOJ’s motion to dismiss, they hyperventilate about how ‘special’ records created by non-FOIA entities and obtained by agencies are and specifically include records written by presidents. To them, if the author: (a) is not subject to FOIA; (b) is a governmental entity; and (c) says they don’t want the records released, then the poor agency just has no choice and courts must hold that they are not agency records,” he said. “Then they turn around and fight tooth and nail to release through FOIA Biden’s records that happened to fall into their lap, because reasons.”

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