Law And Chaos + Heritage Foundation?!?!
FOIA makes strange bedfellows...
Last year when our podcast Law and Chaos filed a FOIA lawsuit against the Justice Department, we knew things might get weird.
And they did!
What we didn’t expect is that we’d be making common cause with the conservative Heritage Foundation as it seeks to embarrass Joe Biden years after he left office. Politics really does lead to strange bedfellows — and so does litigation.
Judicial intimidation — I know you are, but what am I
Almost exactly a year ago, DOJ Chief of Staff Chad Mizelle hand-delivered an ethics complaint to the DC Circuit. The complaint accused Chief Judge James Boasberg of the US District Court for the District of Columbia of “attempt[ing] to improperly influence Chief Justice Roberts and roughly two dozen other federal judges.” It alleged that Judge Boasberg inappropriately suggested at the March 2025 meeting of the Judicial Conference that the Trump Administration was prepared to “disregard rulings of federal courts” and thereby “trigger a constitutional crisis.”
Of course, that is exactly what came to pass in Judge Boasberg’s courtroom, just a few days later on March 15. Instead of turning around the plane stuffed with men headed for CECOT in El Salvador, the government launched two additional flights, and Judge Boasberg has been trying to get to the bottom of the contempt ever since.
Mizelle’s nastygram was vague on the source of its information, simply dropping a footnote to “Attachment A at 16.” But no such attachment was included in the copy of the complaint slipped to reporters last July, and, as Law and Chaos later found out, the attachment wasn’t given to Judge Srinivasan either. All of which strongly implies that this “complaint” was nothing more than a publicity stunt and an attempt to engage in some of that judicial intimidation the DOJ says it despises.
Initially we filed a FOIA request asking the Justice Department to give us Attachment A. We expected the government to refuse — which they did. We did not expect them to put our request for a single document on the “complex” track while claiming that we had failed to show that our request was tied to a “matter of widespread and exceptional media interest.” After all, then-AG Pam Bondi was fulminating on X that Judge Boasberg’s comments “have undermined the integrity of the judiciary, and we will not stand for that.” So in August we sued the DOJ in federal court in Maryland.
In this litigation, the government has taken the very odd position that “Attachment A” is not subject to FOIA because it was created by the judiciary and thus is not an executive “agency record.”
That argument is simply wrong. As our lawyer, Kel McClanahan, Executive Director at National Security Counselors, explained:
FOIA applies to all agency records. It does not apply to Congressional or Judicial records. But it does apply to records which originated outside an agency but were later put into the agency’s files for its own purposes.
In other words, even if “Attachment A” was initially drafted by the judiciary, once the executive branch received it and relied upon it in crafting that ethics complaint against Judge Boasberg, “Attachment A”was transformed into an agency record.
And last week the DC Circuit agreed with us … sort of.
‘Agency record’ is not in the eye of the beholder
The case in DC involved approximately 70 hours of audio recordings and transcripts of Biden speaking with his biographer Mark Zwonitzer. The tapes resurfaced during Special Counsel Robert Hur’s investigation into the retention of classified materials after Biden’s vice presidency ended in 2016.
Hur recommended that no charges be filed because, in his view, a jury wouldn’t convict a “sympathetic, well-meaning, elderly man with a poor memory.” He described Biden’s “painfully slow” cadence, with the then-president “struggling to remember events and straining at times to read and relay his own notebook entries.”
Republicans are still hoping to lock up Hillary Clinton, who hasn’t been a government employee since 2013, so naturally the “Biden Tapes” are a prime target.
The Heritage Foundation requested the recordings in February of 2024, and got rebuffed by the Biden DOJ. The following month, Heritage filed a FOIA suit in DC that landed on the docket of Judge Dabney Friedrich, a Trump appointee. That case dragged along for two years, but, in the meantime, House Judiciary Committee Chair Jim Jordan sent a formal request to the DOJ in March of 2026 requesting that it release the tapes.
Naturally, AG Bondi agreed — it was one of her final official acts before getting fired. Biden moved for a preliminary injunction, but Judge Friedrich refused to enjoin the release. Biden appealed to the DC Circuit, which declined last week to block the release. Rather than press on to the Supreme Court, Biden decided to throw in the towel on Friday the 24th.
The DC Circuit found that, while the tapes were created as non-agency records, “they became subject to FOIA’s disclosure mandate when the Special Counsel obtained possession of them as part of his investigation.”
In other words: even though the recordings were not agency records when Biden and Zwonitzer created them, they become agency records when the Department of Justice relied upon them as part of Hur’s work.
Obviously, we took notice!
Cough it up, Blanche
Last week we filed a notice of supplemental authority, highlighting the DOJ’s rank hypocrisy. The Federal Programs Branch vehemently opposes our FOIA request on the theory that “Attachment A” is not a government record. And yet it never once made that argument about recordings which would embarrass the president’s rival. The DOJ never attempted to claim that the Biden Tapes were outside FOIA simply because they had been created outside of the executive branch. Indeed, none of the DOJ’s argumentation in that case even mentioned “agency records” at all.
We’re not saying that we enjoy sitting on the bench with the Heritage Foundation. But getting our hands on “Attachment A” will certainly soften the blow.