Why the Friedrich Decision in Heritage Foundation vs. DOJ/BIDEN is Wrong (Part I)

On Friday, June 19, 2026, US District Judge Dabney Friedrich handed down a horribly damaging court order denying a preliminary injunction in Heritage Foundation v. Department of Justice and Joseph R. Biden.  Biden’s application for preliminary injunction was an attempt to prevent a release of embarrassing material about Biden in response to a Heritage Foundation 2024 Freedom of Information Act (5 U.S.C. § 552) request.  This is the first of five blog posts on this matter.  

To be clear, the DOJ is trying to create confusion around this FOIA request in a transparent attempt to improperly release material.  Unfortunately, DOJ initially misapplied FOIA in 2024 to the materials in question.  Now, DOJ is saying the materials should be released due to great public interest.  To be fair, Judge Friedrich likely got lost in DOJ’s smokescreen regarding the intersection of traditional Criminal Procedure, FOIA, the Federal Records Act (44 U.S.C. § 3301 et seq), and the Privacy Act of 1974 (5 U.S.C. § 552a).  

For background, Biden’s team found classified documents in his garage and office.  This occurred while Special Counsel Jack Smith was investigating former President Donald Trump for mishandling classified documents and the events surrounding January 6, 2021.  Attorney General Merrick Garland appointed Robert Hur as Special Counsel (SC) in January 2023 to investigate this matter.  SC Hur issued the Report on the Investigation Into Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Eiden Center and the Delaware Private Residence of President Joseph R. Biden, Jr.  in January 2024.

SC Hur’s selection and the nature of the investigation were very public.  Relevantly, Biden co-wrote Promise Me, Dad with Mark Zwonitzer.  While writing the book, Biden sat for recorded interviews with Zwonitzer in 2016 and 2017.  Zwonitzer learned of the Hur investigation and found that he still had those recordings as well as near verbatim transcripts of the interviews.  Before having been contacted by SC Hur’s team, Zwonitzer attempted to delete the recordings from his computer hard drive.  SC Hur’s team served Zwonitzer a subpoena at which time he made no further effort to delete the recordings. Id. at 338.

As SC Hur noted, “[t]he recordings had significant evidentiary value.” Id. at 12. Zwonitzer voluntarily provided the computer hard drive where the Biden recording had been held and consented to an FBI search of it.  Id. at 13.  SC Hur does not make clear if he had decided not to charge Zwonitzer with destruction of evidence before or after consent was provided.    SC Hur quoted liberally from the recordings and transcripts within his report. Id.  

The Fourth Amendment protects, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  The Fifth Amendment states, “No person shall be…. be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 

As I will write in subsequent blog posts over the next few days.  I will explore: 

1. The Fourth Amendment and the collection of Zwonitzer’s hard drive and the analysis of its contents;
2. The Federal Records Act and the memorialization of the contents of the Zwonitzer hard drive and why the contents of the hard drive are not a Federal Record;
3. Continued retention of the Zwonitzer hard drive and its contents and the conversion/taking of those contents, possibly in violation of the Fifth Amendment;
4. The Privacy Act of 1974 and why it has no bearing on collected (digital) property in a criminal investigation; and
5. Why the Freedom of Information Act (FOIA) analysis by the government and Judge Friedrich are a dodge.

My premise is the Fourth and Fifth Amendments protect the CONTENTS of papers collected by the government, not the limited monetary value of the piece of paper itself. And it is for that person to decide to whom, if anyone, that information is shared once the governments prosecutorial interest is extinguished.  As a result of this decision, the government improperly converts, or takes, previously private information for ‘public use, without just compensation.’

Imagine the following hypothetical.  A thief broke into Coca-Cola’s Atlanta headquarters and stole the recipe for Coca-Cola classic.  He then posted a threat to make the recipe public if Coca-Cola did not pay a $1 billion ransom.   The FBI used their investigative powers to identify the subject, obtain a search warrant, seize the hard drive, and found the recipe.  Unfortunately, the FBI agent printed the recipe out and placed it in the case file. 

Pepsi finds out about the presence of the recipe in FBI files and submits a FOIA request to the FBI.  Keep in mind, Coca-Cola has spent 100+ years protecting its recipe and made billions of dollars off it.  It is the very definition of a trade secret and the subject of great public interest.  If the government were to follow Friedrich’s reasoning when reviewing the FOIA request, it should or even must be released.  Never mind that Coca-Cola was the victim of a crime and intended for the recipe to be a secret. 

The hypothetical is meant to be as ridiculous as possible to identify the absurdity of the decision handed down by Friedrich on June 19.  Biden and his team should immediately appeal to the Circuit Court of Appeals for the DC Circuit where it should promptly be overturned.