For eight weeks I’ve been building a model statute on a single premise: that digital content the government takes for a criminal investigation stays the subject’s content, and the government is its custodian, not its owner, from the moment of seizure to the moment of disposition. I’ve argued that premise section by section, in the abstract. This week I want to close the loop, because there is a case testing that exact premise in the most public way imaginable — and I’ve been writing about it since June. It’s the fight over the Biden recordings. And it is, at its core, a § 8 disposition question that the courts are answering as something else entirely.
Here are the bones, kept to the public record. Special Counsel Robert Hur investigated former President Biden’s handling of classified documents. The investigation closed with no charges. Along the way, the government came into possession of recordings connected to the probe — audio from Biden’s interview with the special counsel, and recordings of Biden’s conversations with the ghostwriter who worked on his memoir. The written products went public: the Hur report, and transcripts. Then the Heritage Foundation, through its Oversight Project, filed a FOIA request for the audio, and sued when it wasn’t produced. Judge Dabney Friedrich of the federal district court in Washington cleared the Justice Department to release it. Biden fought to block release. This past summer the D.C. Circuit — Chief Judge Srinivasan and Judge Katsas in the majority, Judge Pan dissenting — denied his bid to stop release pending appeal, resolving it on FOIA Exemption 7(C), the personal-privacy exemption for law-enforcement records. The majority reasoned that the public interest in a special counsel’s investigation of a president was substantial, that redactions narrowed the privacy harm, and that Biden, a public figure whose voice is already constantly in public, had no heightened privacy interest in the sound of it. The recordings moved toward release. (Confirm exactly where this stands before you publish; it has not stopped moving.)
I think the result is wrong, and more importantly I think the frame is wrong — and the frame is what this blog is about. Let me say up front that I’m not a litigator and this is analysis, not a brief. But watch what the FOIA frame quietly assumes.
Start with disposition, because that’s the lens this whole project has been grinding. The investigation is over, and it ended with no indictment. What is supposed to happen, at that point, to private material the government seized? The Justice Department’s own Justice Manual, at 9-14.000, sets a presumption that seized evidence in a closed case that produced no charges is to be returned or disposed of — given back to the owner. The FBI’s Digital Evidence Policy Guide points the same way: seized digital evidence is handled as the owner’s property, returned at the end of the case, with no channel for public release, and — a detail I keep coming back to — kept out of the Bureau’s general records system precisely because seized digital evidence is not that kind of record. The government’s own rules, applied to a closed no-charge investigation, point to one lifecycle ending: return it. Maybe destroy it. They do not point to publish it to whoever files a request.
That is the disposition the case is really about, and the FOIA frame skips past it. Framing the question as “may the government release these records under Exemption 7(C)?” quietly assumes the government owns the content and merely has discretion about disclosing it, subject to exemptions someone must invoke. But that is the assumption this blog has spent eight weeks contesting. If the government is a custodian of seized content and not its owner, then at the end of an uncharged investigation its lawful options are the custodian’s options — give it back, or destroy it. “Publish it” is not on the custodian’s menu at all. Exemption 7(C) is the answer to a question we should never have reached, because the prior question — does the government even hold these recordings in a capacity that lets it release them? — was never asked. The exemption analysis is a dodge, however carefully it’s done, because it treats a property-and-disposition problem as a disclosure-discretion problem and then, unsurprisingly, produces a disclosure answer.
Now bring in the two threads this blog has been pulling all along, because the case braids them together. First, content-not-container. The transcript is already public. The fight is over the audio — the same content in a different form. The courts spent their analysis on the medium: is a voice recording more private than its transcript? But the blog’s whole argument, from the first post, is that the Fourth Amendment protects the content, in whatever form it takes, and that protection travels with the content across the tape, the transcript, the copy. If the content is private, it does not become publishable because it’s audio; if it’s already public in the transcript, the marginal thing the audio adds is the voice and the demeanor — which is to say, more of exactly the private, beyond-the-written-facts material that disposition exists to protect. Either way the medium is the wrong thing to be measuring.
Second, the system-placement point I made two weeks ago, in § 7: seized digital content should not live in a system that discloses it to the public, and the FBI’s own practice of keeping seized digital evidence out of its federal-records system reflects that instinct. The Biden case is that rule’s public stress test. FOIA is a statute about agency records — material the government creates or keeps in the conduct of its own business. Seized private recordings, taken from a person for an investigation that charged no one, are not the government’s records in that sense; the government is holding someone else’s content. Running them through FOIA as though they were ordinary agency records is the category error the model act’s § 7 is built to prevent, playing out at the level of a former president.
Let me give the disclosure side its due, because it is genuinely strong and I don’t want to wave it away. A special counsel’s investigation of a president — and the decision not to charge him — is close to the top of any list of things the public has a legitimate right to scrutinize. FOIA exists precisely so citizens can check what the government did and why. If the declination turned in part on the subject’s apparent memory or capacity, the public arguably has a real interest in assessing that for itself rather than taking a prosecutor’s characterization on faith. And Exemption 7(C) is not some exotic maneuver; it is the long-established, correct vehicle for weighing exactly this kind of personal-privacy-versus-public-interest question. Reasonable people, and serious judges, land on release.
Here’s why I still think the frame fails. The public’s interest is in the government’s conduct and decision — and that interest is served, fully and directly, by the report and the transcripts, which are public. The audio adds the voice and the demeanor, which is content about the person, not additional information about the government’s decision. An oversight interest that can reach the raw seized private material of an uncharged individual, merely because the investigation was important, proves far too much: it would justify publishing anyone’s seized content whenever the case was high-profile enough to make the public curious. That is a disclosure principle with no stopping point, and it points the wrong way — toward the government as owner-and-publisher of what it seizes, rather than custodian-and-returner. The lifecycle answer protects both values at once: the public gets the report and the transcript; the subject gets back, or sees destroyed, the raw material a closed investigation had no further use for.
One more feature of this case is worth naming without heat, because it is the cleanest argument for a rule over discretion: the government’s own litigating position on these records shifted over time, defending withholding at one point and favoring release at another. Whatever explains that, it is the perfect illustration of why disposition should not ride on the discretion of whoever currently runs the department. Discretion is a mood. A disposition rule is a rule. The subject’s protection should not depend on which way the wind is blowing at Main Justice.
And that is the trans-partisan core of it, which I’ll state plainly: I would argue this identically if the recordings were a Republican’s. The principle is not about Biden. It is that seized digital content belonging to a person the government chose not to charge should be returned or destroyed at the end of the case — never published — and that FOIA is not supposed to be the override valve that turns disposition into disclosure. That is the entire model act, compressed into one very famous example. Collection was lawful. The investigation ended. Disposition should mean return, not release. The courts are answering a property question with a disclosure doctrine, and getting a disclosure answer. My prediction — offered as analysis, not prophecy — is that until a court treats the threshold question as a disposition question, seized private content will keep leaking out this exit, and the next subject won’t be a president.That’s the full circle. Eight sections toward a single idea — the government is a custodian of what it seizes, not its owner — and here is that idea’s hardest, most public test.
Next Tuesday, § 9: suppression — what happens when the government breaks the rules.
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