The Deepfake Privilege? The Justice Department Makes Startling Claim to Withhold the Biden-Hur Audiotape

 We have been discussing the dubious constitutional basis for President Joe Biden withholding the audio tapes of his interview with special counsel Robert Hur. I have previously written that the claim of privilege makes little sense when the transcript of the interview has already been released. It seems curious that Biden is claiming to be the president “who cannot be heard” in withholding the audio version. It just got wackier as the Justice Department seeks to create a new type of “Deepfake privilege” that would effectively blow away all existing limits on the use of the privilege when it comes to audio or visual records of a president.

Multiple committees are investigating Biden for possible impeachment and conducting oversight on the handling of the investigation into his retention and mishandling of classified material over decades. Classified documents were found in various locations where Biden lived or worked, including his garage. The mishandling of classified material is uncontestable. Broken boxes, unprotected areas and lack of tracking are all obvious from the photos.

Biden made the situation even worse with a disastrous press conference in which he attacked Hur and misrepresented his findings.

Hur’s ultimate conclusion that Biden’s diminished cognitive abilities would undermine any prosecution left many dumbfounded. After all, the man who is too feeble to prosecute is not only running a superpower with a massive nuclear arsenal but running for reelection to add four more years in office.

From impeachment to oversight to the 25th Amendment (allowing the removal of a president for incapacities), there are ample reasons for Congress to demand information and evidence from the government on these questions. Congress is also interested in looking at repeated omissions for “inaudible” statements. Under this sweeping theory that Biden can legitimately withhold these recordings under executive privilege, any president could withhold any evidence of incapacity or criminality.

As previously explained, the claim that the audiotape but not the transcript remains privileged is hard to square with precedent or logic. However, now the Justice Department appears to be pivoting with a new claim with a late Friday filing.  The filing obtained by Politico states that the audiotape must be withheld due to the risk that it could be altered by artificial intelligence and passed off as authentic in a deepfake release: “The passage of time and advancements in audio, artificial intelligence, and ‘deep fake’ technologies only amplify concerns about malicious manipulation of audio files.”

Consider the implications of that argument for a second. It would mean that any visual or audio recording of the President could be withheld due to the danger of digital or other manipulation. It would eviscerate any existing limits on privilege assertions.

It is also absurd since you could create such fake recordings using the transcript and Biden’s voice from countless interviews through AI programs. The Justice Department acknowledges that obvious logical disconnect by noting that the release would make any fake version more credible.

“To be sure, other raw material to create a deepfake of President Biden’s voice is already available, but release of the audio recording presents unique risks: if it were public knowledge that the audio recording has been released, it becomes easier for malicious actors to pass off an altered file as the true recording,.”

The filing is logically and legally absurd. It is also dangerous.

For a president who is already carefully insulated from questions and controlled in public appearances, the argument would allow staff to completely control any public or, more importantly, congressional review of his actual speech and discourse.

In seeking to prevent “malicious actors” from altering reality, the government is claiming the right to frame reality as an inherent constitutional prerogative.

The argument ignores that, if an audiotape is released, it is harder to pass off a fake as genuine. As it stands, actors can claim tapes as leaked or derived from other sources. In the absence of an official tape, such arguments can be difficult to refute.

The fact that this spurious argument is being made by Merrick Garland’s Justice Department is another disappointing sign that he has abandoned his pledge to remain apolitical in office. This litigation is clearly designed for one overriding purpose: to delay any release until after the election when it cannot harm the President.

It is the legal version of a deepfake — misrepresenting the law to mislead citizens into believing that they are better off with less information on the credibility and competence of their president.

https://jonathanturley.org/2024/06/02/the-deepfake-privilege-the-justice-department-makes-startling-claim-to-withhold-the-biden-hur-audiotape/