Biographer Tapes Filing

Case 1:24-cv-00645-DLF Document 26 Filed 07/22/24 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
HERITAGE FOUNDATION,
MIKE HOWELL,
Plaintiffs,
v. Case No. 1:24-cv-00645-DLF
U.S. DEPARTMENT OF JUSTICE,
Defendant.
DEFENDANT’S NOTICE REGARDING SEARCH
Defendant respectfully submits this notice to provide certain updates regarding the
Department’s search in this Freedom of Information Act (“FOIA”) case, in advance of the
telephonic conference scheduled for tomorrow morning.
In the status conference held on June 18, 2024, undersigned counsel represented to the
Court that the Special Counsel’s Office (“SCO”) did not have a verbatim transcript made of the
audio recordings of President Biden’s interviews with his biographer, Mark Zwonitzer.
Transcript of June 18, 2024 Status Conference at 16-17, available at ECF No. 23-3 (“[U]nlike the
case of the special counsel and his interviews with the president, we don’t have some transcript
that’s been created by the [S]pecial [C]ounsel that we can attest to its accuracy.”). Undersigned
counsel made this representation based on his understanding of the facts at the time. Later in
the status conference, counsel for Plaintiffs questioned this representation, pointing to a notation
in a footnote in the Hur Report to a transcript abbreviation, id. at 39, and subsequently asked
undersigned counsel about the transcript reference.

In the past few days, in the course of processing the portions of the Biden-Zwonitzer
audio recordings that the parties agreed to (see June 25, 2024 Joint Status Report at 2-3, ECF No.
20), the Department located six electronic files, consisting of a total of 117 pages, that appeared
to be verbatim transcripts of a small subset of the Biden-Zwonitzer audio recordings created for
the SCO by a court-reporting service. Having learned about the transcripts, the Department
planned to contact an individual with knowledge of the SCO files with whom the Department
had previously consulted. However, the individual was out of the office and unavailable.
Accordingly, the Department contacted Robert Hur to ask about the nature of the transcripts.
Mr. Hur confirmed that the identified files were in fact transcripts of a subset of the Biden-
Zwonitzer audio recordings, created by a court-reporting service at the SCO’s request. These
transcripts were indeed the transcripts referred to in the Hur Report, though they were not cited
in any of the Passages in Plaintiffs’ FOIA request.
Having contacted Mr. Hur to gather information about the transcripts, the Department
concluded that it was appropriate under the circumstances to ask him what records he relied upon
for the highlighted statements in Plaintiffs’ FOIA request. Mr. Hur identified two records that
he relied upon in addition to those already identified by the Department: (1) the newly-located,
verbatim transcripts of the Biden-Zwonitzer audio prepared by a court-reporting service at the
SCO’s request, and (2) with respect to the Afghanistan memo—a memo that the Department
previously identified as responsive, and that Plaintiffs agreed to scope out of their request—a
specific portion of Mr. Biden’s handwritten notebook related to the memo. See June 16, 2024
Joint Status Report at 2, ECF No. 14. Mr. Hur also confirmed that, in making the statements
2
highlighted in Plaintiff’s FOIA request that drew conclusions about the Biden-Zwonitzer audio
recordings, he had relied on the Biden-Zwonitzer audio recordings generally.
The Department plans to confer with Plaintiffs about whether they would like the
Department to process these additional records and the impact of these developments on
Plaintiffs’ challenge to the adequacy of Defendant’s search.
Dated: July 22, 2024 Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
/s/ Cameron Silverberg

CAMERON SILVERBERG
Trial Attorney (D.C. Bar No. 1780628)
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW
Washington, DC 20005
Tel.: (202) 353-9265
Fax: (202) 616-8470
Email: Cameron.D.Silverberg@usdoj.gov
Counsel for Defendant

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Case 1:24-cv-00645-DLF Document 26 Filed 07/22/24 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

v. Case No. 1:24-cv-00645-DLF

U.S. DEPARTMENT OF JUSTICE,

DEFENDANT’S NOTICE REGARDING SEARCH

telephonic conference scheduled for tomorrow morning.

undersigned counsel about the transcript reference.

in any of the Passages in Plaintiffs’ FOIA request.

verbatim transcripts of the Biden-Zwonitzer audio prepared by a court-reporting service at the

recordings, he had relied on the Biden-Zwonitzer audio recordings generally.

Plaintiffs’ challenge to the adequacy of Defendant’s search.

Dated: July 22, 2024 Respectfully submitted,

/s/ Cameron Silverberg

Counsel for Defendant

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