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

In my previous post, I explained that the recordings and transcripts of former President Biden’s interviews with his co-author are not government records subject to FOIA.  The government through the Department of Justice (DOJ) has argued that those items, third-party property lawfully collected by and still in custody of the government, are subject to release under FOIA.  

In a strange twist, DOJ is making the same argument in another case in the District Court for the District of Columbia.  That case is Katie Phang’s effort to force DOJ to release more of the Epstein Files in front of District Judge Emmet Sullivan.  Sullivan granted Phang an injunction and ordered DOJ to release more of the ‘Epstein Files.’

On their face, these cases couldn’t be more dissimilar.  The Biden tapes/transcript were collected by the government in part to determine if they demonstrated evidence of his state of mind regarding the classified documents he improperly retained in his garage.  The so-called ‘Epstein Files’ were collected during the FBI’s investigation of Jeffrey Epstein and Ghislaine Maxwell for child sex trafficking.  

There are also material differences in the posture of the two cases.  In Biden, Mark Zwonitzer has a property interest he is not protecting in the recordings/transcripts DOJ and the Heritage Foundation seek to release.  Biden is intervening to seek to prevent their release.  DOJ has also altered its argument.  Initially and consistent with historic practice, DOJ argued against release of these items were not subject to a FOIA release under multiple FOIA exceptions. After President Trump’s election, DOJ changed its position to agree with the Heritage Foundation.  It is now arguing that the recordings are Privacy Act records subject to FOIA and Biden’s privacy interests are defeated by great public interest in the recordings.

In Phang, she seeks the release of seized Epstein emails.  As he is dead, Epstein’s property right in those is presumably held by his estate.  (Phang also seeks the release of FBI-created records that I will not further analyze as those are government records subject to FOIA.) The Congress passed the Epstein Transparency Act (ETA) to force the release of items like the Epstein emails.  ETA effectively states Congress can force the release of private property and communications when there is sufficient support for their release.   I had grave concern with ETA when it was passed due to the potential for personal property rights to be subjugated to political winds.  

DOJ argues in Phang that she does not have standing to force release of the items under ETA.  Rather, it argues her recourse is a FOIA request for the records.  We can all imagine that DOJ will then remember the FOIA exceptions to not release those items.

The Fourth and Fifth Amendments were enacted to protect individuals’ privacy and property rights from government overreach.  The courts historically have not allowed the government to convert physical property or money to public use without a conviction and forfeiture order.  The lower scrutiny provided to digital property by the courts leads to a different result.  I am afraid the courts in the Biden and Phang cases will create bad precedent and a permission structure for DOJ, and DOJ alone, can decide if private digital property in its possession can be made public.    

My next post will explore the issues with photos from the Mar-A-Lago search photos being placed in court filings.  I will explain how the nature of the photos is different than the Biden recordings and the Epstein files, their use was legal, and their use, in part, created the current environment.