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Biden's 'privilege' claims sound like arguments Trump officials made before getting thrown in jail: attorney

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Biden's 'privilege' claims sound like arguments Trump officials made before getting thrown in jail: attorney

President Biden’s assertion of executive privilege to prevent recordings of his interviews with special counsel Robert Hur from being released shares some similarities with former President Trump’s attempts to use privilege while in the White House, according to one legal expert.

Though transcripts of Biden’s interview with Hur have already been released to a committee, the White House asserted executive privilege to block the audio recordings from becoming public while arguing in lockstep with Attorney General Merrick Garland that “law enforcement files like these need to be protected.”

“The same arguments were made during the Trump years as are being made now. It’s just that the roles are reversed,” former Assistant U.S. Attorney Andrew McCarthy told Fox News Digital

“For example, during the Mueller investigation, Trump made available Don McGahn, who was the White House counsel. They not only let Mueller interview McGahn at length, but McGahn took voluminous notes of his conversations with Trump, which they also turned over. And then Democrats wanted to subpoena McGahn to come to the House Judiciary Committee, and the Republicans fought it.

BIDEN’S PRIVILEGE CLAIM TO KEEP SPECIAL COUNSEL INTERVIEW UNDER WRAPS A ‘CRUDE POLITICS’ MOVE: EXPERTS

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President Biden speaks at the National Museum of African American History and Culture in Washington, D.C., May 17, 2024. (Al Drago/Bloomberg via Getty Images)

“What they said was giving information to an executive branch prosecutor doesn’t waive the privilege as to Congress,” he added. “The Democrats all said that this was an obstruction of justice, that it was outrageous, that he’d already waived the privilege by allowing McGhan to speak to the prosecutor.”

Executive privilege has been around since the earliest days of the country and gives the executive branch the ability to withhold certain internal discussions and documents from scrutiny by the courts and the legislative branch. It allows the president some breathing room for his own deliberations with staff.

“The fact is that since the Republic started, presidents have been withholding information from Congress,” McCarthy said.

Congress has a variety of tools it can use to pry information out of the executive branch, including by holding people in contempt. 

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“Congress has a whole arsenal of stuff from the Constitution, powers that it can use to fight back and pry information out of the executive branch,” McCarthy said. “You know, you can slash budgets or hold up appointments, and if it gets bad enough, you can start holding people in contempt. … The final option, obviously, is impeachment.”

McCarthy warned, however, that if the president’s party has enough influence in Congress, those efforts can be more challenging.

“If the president’s party has enough sway in Congress that you can stop that arsenal from being used, then the whole thing is just a political calculation,” he said. “Like for Biden here, it’s how much worse would I be hurt by letting the tape come out or the recording come out than by stonewalling. It looks like the tape is so bad, he’s decided that even though he’s going to be damaged by stonewalling, that’s better than letting the tape out.”

McCarthy also highlighted how the media has reacted to Biden’s assertion of executive privilege, saying they’ll report on the matter in an attempt to preserve their integrity and then move on from it to “help Biden bury it.”

“The usual problem that you always have here is that when Republican administrations stonewall, the media gets all whipped up about it, and when Democratic administrations stonewall, they feel like they have to cover it for a day or two so that they can say they covered it but then move on to another subject and help Biden bury it, or at least they’ll try,” he said.

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Former President Trump, left, and President Biden (Associated Press )

Garland on Thursday defended Biden’s decision to assert executive privilege, saying the subpoena for audio recordings “is one that would harm our ability in the future to successfully pursue sensitive investigations.”

“There have been a series of unprecedented, frankly, unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files is just the most recent effort to threaten, defund our investigations, and the way in which there are contributions to an atmosphere that puts our agents and our prosecutors at risk,” he added.

“It is the longstanding position of the executive branch held by administrations of both parties that an official who asserts the President’s claim of executive privilege cannot be prosecuted for criminal contempt of Congress,” Associate Attorney General Carlos Uriarte wrote in a letter Thursday to GOP Reps. Jim Jordan and James Comer, chairmen of the Committee on the Judiciary and Committee on Oversight and Accountability, respectively.

That “longstanding position,” however, was challenged following Trump’s term in the White House and the Capitol protests Jan. 6, 2021. 

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Two individuals who served in the Trump administration and raised executive privilege claims — former White House chief strategist Steve Bannon and former Trump adviser Peter Navarro – have been convicted of contempt of Congress and sentenced to serve jail time for their refusal to comply with subpoenas issued by the now-defunct House select committee investigating the Capitol protests.

TRUMP ALLY STEVE BANNON LOSES APPEAL ON CONTEMPT CONVICTION AS HE FIGHTS TO STAY OUT OF PRISON

Bannon, 70, was sentenced to four months in prison in October 2022 and a $6,500 fine for ignoring a congressional subpoena.

Bannon’s appeal was denied last week after the U.S. Court of Appeals for the D.C. Circuit released a 20-page opinion that said granting Bannon’s appeal would “hamstring Congress’s investigatory authority.”

Bannon claimed he acted on the advice of his legal team and did not intend to break the law. Judge Bradley Garcia wrote the acting on “advice of counsel” defense is “no defense at all.”

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The ruling will be appealed, Bannon’s attorney, David Schoen, told Fox News Digital last week.

Schoen noted that Bannon’s attorney at the time he received the subpoena, Robert Costello, advised his client that he was not permitted, as a matter of law, in any way to respond to the notice, saying executive privilege had been raised and that it was not his privilege to waive it. Costello wrote the committee to inform it that Bannon would comply if the panel worked out any privilege issues with former President Trump or if a court ordered him to comply, Schoen said.

Former White House chief strategist Steve Bannon, left, and former Trump adviser Peter Navarro (Getty Images)

Similarly, Navarro, who reported to prison in Miami in March following an order from the U.S. Supreme Court, was charged and convicted with contempt of Congress after he refused to comply with a congressional subpoena demanding his testimony and documents relating to the events of Jan. 6.

Though Navarro is attempting to appeal his contempt of Congress conviction, the court refused to postpone his imprisonment until after the appeal is concluded.

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Navarro claimed he could not cooperate with the committee investigating the Jan. 6 attack because Trump had invoked executive privilege, an argument that lower courts have rejected.

The lower courts found that Navarro could not actually prove Trump had invoked executive privilege.

Biden’s decision to assert the privilege, according to White House press secretary Karine Jean-Pierre, came at the request of Garland. Jean-Pierre said it was Garland’s suggestion that “law enforcement files like these need to be protected.”

The House Judiciary Committee on Thursday advanced a resolution to hold Garland in contempt of Congress over the Justice Department’s failure to produce the subpoenaed audio recording of Biden’s interview with Hur. The vote advances the measure for a full floor vote.

Special Counsel Robert Hur, left, and President Biden (Getty Images)

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Hur led the investigation into Biden’s handling of classified documents after his departure as vice president under the Obama administration. Hur announced in February that he would not recommend criminal charges against Biden for possessing classified materials after his vice presidency, saying Biden is “a sympathetic, well-meaning, elderly man with a poor memory.”

Hur wrote in the report that “it would be difficult” to convince a jury to convict Biden of any willful crime, citing his advanced age. 

The findings sparked widespread outrage that Biden was effectively deemed too cognitively impaired to be charged with a crime but could serve as president. Trump has meanwhile slammed the disparity in charges as a reflection of a “sick and corrupt, two-tiered system of justice in our country.

Fox News’ Chris Pandolfo, Elizabeth Elkind, Louis Casiano and Emma Colton contributed to this report.

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House Republicans push Johnson to go to war with Senate over SAVE Act

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House Republicans push Johnson to go to war with Senate over SAVE Act

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Several House Republicans are pushing Speaker Mike Johnson, R-La., to go to war with the Senate GOP over an election security bill that has little chance of passing the upper chamber under current circumstances.

House GOP leaders convened a lawmaker-only call on Sunday in the wake of a massive military operation against Iran launched by the U.S. and Israel.

After leaders briefed House Republicans on how the chamber would respond to the ongoing conflict — including a vote on ending Democrats’ weeks-long government shutdown targeting the Department of Homeland Security (DHS) — Fox News Digital was told that several lawmakers raised concerns about the Senate not yet taking up the Safeguarding American Voter Eligiblity (SAVE America) Act. Among other provisions, the act would require voters in federal elections to produce valid ID and proof of citizenship.

Rep. Derrick Van Orden, R-Wis., was among those pushing the House to reject any bills from the Senate until the measure was taken up, telling Johnson according to multiple sources on the call, “If we don’t get this done, or at least show that we’ve got some backbone, we’re done. The midterms are over.”

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Speaker of the House Mike Johnson, R-La., pauses for questions from reporters as he arrives for an early closed-door Republican Conference meeting at the Capitol in Washington, Tuesday, Feb. 3, 2026. (J. Scott Applewhite/AP Photo)

At least three other House Republicans shared similar concerns. Sources on the call said Rep. Brandon Gill, R-Texas, argued that GOP voters were “not enthused” heading into November and that “the single biggest thing” to turn that around would be forcing the Senate to pass the SAVE America Act.

The SAVE America Act passed the House last month with support from all Republicans and just one Democrat, Rep. Henry Cuellar, D-Texas.

JEFFRIES ACCUSES REPUBLICANS OF ‘VOTER SUPPRESSION’ OVER BILL REQUIRING VOTER ID, PROOF OF CITIZENSHIP

Republicans have pointed out on multiple occasions that voter ID measures have bipartisan support across multiple public polls and surveys. But Democrats have dismissed the legislation as an attempt at voter suppression ahead of the 2026 midterms.

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 Senate Majority Leader John Thune speaks at a press conference with other members of Senate Republican leadership following a policy luncheon in Washington, D.C. on Oct. 28, 2025. (Nathan Posner/Anadolu via Getty Images)

The legislation would require 60 votes in the Senate to break filibuster, which it’s likely not to get given Democrats’ near-uniform opposition. But House Republicans have pressured Senate Majority Leader John Thune to use a mechanism known as a standing filibuster to circumvent that — which Thune has signaled opposition to, given the vast amount of time it would take up in the Senate and potential unintended consequences in the amendment process.

It also comes as Congress grapples with the fallout from the strikes on Iran and the need to ensure safety for the U.S. domestically and for service members abroad, both of which will require close coordination between the two chambers.

Johnson told Republicans several times on the Sunday call that he was privately pressuring Thune on the bill but was wary of creating a public rift with his fellow GOP leader, sources said.

HARDLINE CONSERVATIVES DOUBLE DOWN TO SAVE THE SAVE ACT

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“If we’re going to go to war against our own party in the Senate, there may be implications to that,” Johnson said at one point, according to people on the call. “So we want to be thoughtful and careful.”

Sen. Mike Lee, R-Utah, talks with a guest during a “Only Citizens Vote Bus Tour” rally in Upper Senate Park to urge Congress to pass the Safeguard American Voter Eligibility (SAVE) Act on Wednesday, Sept. 10, 2025. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

At another point in the call, sources said Rep. Andrew Clyde, R-Ga., suggested pairing a coming vote on DHS funding with the SAVE America Act in order to force the Senate to take it up.

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But both Johnson and House Homeland Security Committee Chairman Andrew Garbarino, R-N.Y., were hesitant about such a move given the enhanced threat environment in the wake of the U.S. operation in Iran.

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Both spoke out in favor of the SAVE America Act, people told Fox News Digital, but warned the current situation merited leaving the DHS funding bill on its own in a bid to end the partial shutdown, so the department could fully function as a national security shield.

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Trump justifies Iran attack as Congress and others raise objections

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Trump justifies Iran attack as Congress and others raise objections

According to President Trump, the United States attacked Iran because the Islamic Republic posed “imminent threats” to the U.S. and its allies, including through its use of terrorist proxies and continued pursuit of nuclear weapons.

“Its menacing activities directly endanger the United States, our troops, our bases overseas and our allies throughout the world,” he said in a recorded statement Saturday.

According to leading Democrats in Congress, Trump’s justification is questionable, especially given his claims of having “completely obliterated” Iran’s nuclear capabilities in separate U.S. bombings last June.

“Everything I have heard from the administration before and after these strikes on Iran confirms this is a war of choice with no strategic endgame,” said Rep. Jim Himes (D-Conn.), ranking Democrat on the House Intelligence Committee and part of a small group of congressional leaders — the Gang of Eight — who were briefed on the operation by Secretary of State Marco Rubio.

That divide is bound to remain an issue politically heading into this year’s midterm elections, and could be a liability for Republicans — especially considering that some in the “America First” wing of the MAGA base were raising their own objections, citing Trump’s 2024 campaign pledges to extricate the U.S. from foreign wars, not start new ones.

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The debate echoed a similar if less immediate one around President George W. Bush’s decision to go to war in Iraq following the Sept. 11, 2001, attacks, also based on claims that “weapons of mass destruction” posed an immediate threat. Those claims were later disproved by multiple findings that Iraq had no such arsenal, fueling recriminations from both political parties for years.

The latest divide also intensified unease over Congress ceding its wartime powers to the White House, which for years has assumed sweeping authority to attack foreign adversaries without direct congressional input in the name of addressing terrorism or preventing immediate harm to the nation or its troops.

Even prior to the weekend bombings, Democrats including Sen. Adam Schiff of California were pushing Congress to pass a resolution barring the Trump administration from attacking Iran without explicit congressional authorization.

“President Trump must come to Congress before using military force unless absolutely necessary to defend the United States from an imminent attack,” Sen. Tim Kaine (D-Va.), a member of the armed services and foreign relations committees, said in a statement Thursday.

In justifying the daylight strikes that killed Supreme Leader Ayatollah Ali Khamenei just two days later, Trump accused the Iranian government of having “waged an unending campaign of bloodshed and mass murder” for nearly half a century — including through attacks on U.S. military assets and commercial shipping vessels abroad — and of having “armed, trained and funded terrorist militias” in multiple countries, including Hezbollah and Hamas.

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Trump said that after the U.S. bombed Iran last summer, it had warned Tehran “never to resume” its pursuit of nuclear weapons. “Instead, they attempted to rebuild their nuclear program and to continue developing long-range missiles that can now threaten our very good friends and allies in Europe, our troops stationed overseas, and could soon reach the American homeland,” he said.

Other Republican leaders largely backed the president.

“The United States did not start this conflict, but we will finish it. If you kill or threaten Americans anywhere in the world — as Iran has — then we will hunt you down, and we will kill you,” said Defense Secretary Pete Hegseth.

“Every president has talked about the threat posed by the Iranian regime. President Trump is the one with the courage to take bold, decisive action,” said Atty. Gen. Pam Bondi.

While Iran’s coordination with and sponsorship of groups such as Hezbollah and Hamas are well known, Trump’s claims about Tehran’s ongoing development of nuclear weapons systems are less established — and the administration has provided little evidence to back them up.

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Democrats seized on that lack of fresh intelligence in their responses to the attacks, contrasting Trump’s latest statements about imminent threats with his assertion after last year’s bombings that the U.S. had all but eliminated Iran’s nuclear aspirations.

“Let’s be clear: The Iranian regime is horrible. But I have seen no imminent threat to the United States that would justify putting American troops in harm’s way,” said Sen. Mark Warner (D-Va.), vice chairman of the Senate Intelligence Committee and a member of the Gang of Eight. “What is the motivation here? Is it Iran’s nuclear program? Their missiles? Regime change?”

Senate Minority Leader Chuck Schumer (D-N.Y.) said in a statement that the Trump administration “has not provided Congress and the American people with critical details about the scope and immediacy of the threat,” and must do so.

House Minority Leader Hakeem Jeffries (D-N.Y.) said the Trump administration needs congressional authority to wage such attacks barring “exigent circumstances,” and didn’t have it.

“The Trump administration must explain itself to the American people and Congress immediately, provide an ironclad justification for this act of war, clearly define the national security objective and articulate a plan to avoid another costly, prolonged military quagmire in the Middle East,” he said.

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After the U.S. military announced Sunday that three U.S. service personnel were killed and five others seriously wounded in the attacks, the demands for a clearer justification and new constraints on Trump only increased.

Rep. Ro Khanna (D-Fremont) said Sunday he is optimistic that Democrats will be unified in trying to pass the war powers resolution, and also that some Republicans will join them, given that the strikes have been unpopular among a portion of the MAGA base.

Rep. Thomas Massie (R-Ky.), who partnered with Khanna to force the release of the Jeffrey Epstein files, has said he will work with him again to push a congressional vote on war with Iran, which he said was “not ‘America First.’”

Benjamin Radd, a political scientist and senior fellow at the UCLA Burkle Center for International Relations, said that whether or not Iran represented an “imminent” threat to the U.S. depends not just on its nuclear capabilities, but on its broader desire and ability to inflict pain on the U.S. and its allies — as was made clear to both the U.S. and Israel after the Hamas attacks on Israel on Oct. 7, 2023, which Iran praised.

“If you are Israel or the United States, that’s imminent,” he said.

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What happens next, Radd said, will largely depend on whether remaining Iranian leaders stick to Khamenei’s hard-line policies, or decide to negotiate anew with the U.S. He expects they might do the latter, because “it’s a fundamentalist regime, it’s not a suicidal regime,” and it’s now clear that the U.S. and Israel have the capabilities to take out Iranian leaders, Iran has little ability to defend itself, and China and Russia are not rushing to its aid.

How the strikes are viewed moving forward may also depend on what those leaders decide to do next, said Kevan Harris, an associate professor of sociology who teaches courses on Iran and Middle East politics at the UCLA International Institute.

If the conflict remains relatively contained, it could become a political win for Trump, with questions about the justification falling away. But if it spirals out of control, such questions are likely to only grow, as occurred in Iraq when things started to deteriorate there, he said.

Israel and the U.S. are betting that the conflict will remain manageable, which could turn out to be true, Harris said, but “the problem with war is you never really know what might happen.”

On Sunday, Iran launched retaliatory attacks on Israel and the wider Gulf region. Trump said the campaign against Iran continued “unabated,” though he may be willing to negotiate with the nation’s new leaders. It was unclear when Congress might take up the war powers measure.

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Video: Trump’s War of Choice With Iran

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Video: Trump’s War of Choice With Iran

new video loaded: Trump’s War of Choice With Iran

Our national security correspondent David E. Sanger examines the war of choice that President Trump has initiated with Iran.

By David E. Sanger, Gilad Thaler, Thomas Vollkommer and Laura Salaberry

March 1, 2026

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