A divided federal appeals court ruled against former President Joe Biden's attempt to keep audio recordings and transcripts of his ghostwriter interviews sealed, a legal defeat that could expose the full extent of the memory lapses Special Counsel Robert Hur documented.
The U.S. Court of Appeals for the D.C. Circuit handed down a 2-1 decision Monday rejecting Biden's privacy claims and finding that the public's interest in the material outweighs whatever personal embarrassment the recordings might cause. Chief Judge Sri Srinivasan, an Obama appointee, joined with Judge Gregory Katsas, a Trump appointee, in the majority. The lone dissenter: Judge Florence Pan, the only Biden appointee on the panel.
The recordings at issue capture Biden's private conversations with author Mark Zwonitzer, who ghostwrote the former president's 2017 memoir "Promise Me, Dad." Those sessions, conducted at Biden's home after he left the vice presidency, were later obtained by Hur's team during its investigation into Biden's handling of classified information. The Heritage Foundation sued the Justice Department in March 2024 under the Freedom of Information Act to force their release.
Biden's legal team argued the conversations were candid, deeply personal, and always intended to stay private. The court disagreed.
The majority opinion was direct. As the New York Post reported, the two-judge majority concluded that once Hur's office took possession of the material as part of a federal investigation, it fell under the government's FOIA disclosure obligations, regardless of how the recordings originated.
Srinivasan and Katsas wrote:
"We conclude that any remaining incursion on personal privacy from disclosure of the now-redacted materials likely does not outweigh the public interest in disclosure."
The panel also found that Biden had not shown sufficient evidence he would suffer irreparable harm if the material became public. That finding undercuts any emergency appeal Biden might attempt before the court's August 3 deadline, the date by which the former president must decide whether to pursue additional legal action.
This ruling follows an earlier federal court decision that likewise rejected Biden's effort to keep the recordings sealed, meaning he has now lost at two levels of the judiciary on the same question.
Judge Pan, in dissent, argued that Biden had demonstrated a "substantial privacy interest" in the material. She emphasized the setting and circumstances of the recordings.
"The conversations at issue took place in Biden's home, and the recordings of them were obtained by the government in the course of a criminal investigation that did not lead to an indictment."
Pan's argument rests on the fact that Hur declined to charge Biden. But the majority clearly viewed the public interest as running in the opposite direction, precisely because the special counsel's findings raised serious questions about a sitting president's fitness that voters and the public had a right to evaluate for themselves.
The recordings matter because of what Hur's February 2024 report already revealed. The special counsel described Biden as showing "diminished faculties and faulty memory" and characterized his conversations with Zwonitzer as "painfully slow, with Mr. Biden struggling to remember events." Hur ultimately declined to bring charges, concluding in part that Biden would present himself to a jury as "a sympathetic, well-meaning, elderly man with a poor memory."
Transcripts of Biden's interviews with Hur's team, released in March 2024, bore that assessment out. In one exchange, Biden struggled to recall when his own son Beau died of brain cancer. "What month did Beau die? Oh, God, May 30, " Biden said, before being corrected. He then asked, "Was it 2015 he had died?" White House lawyer Rachel Cotton reminded him it was May of 2015.
Biden later accused Hur of having "inappropriately brought up the death of his son", a claim the transcripts themselves contradicted, since Biden raised the subject on his own.
The ghostwriter recordings are expected to capture similar moments. Biden's team has acknowledged the tapes include candid discussions about Beau, which is part of why they have fought so aggressively to keep them sealed. But the court's majority drew a clear line: personal sensitivity does not override the public's legal right to government-held records under FOIA.
A Biden spokesperson, T.J. Ducklo, pushed back on the ruling. As Newsmax reported, Ducklo accused the Trump administration of "weaponizing the DOJ for political retribution" by seeking to release the recordings.
That framing ignores the fact that the Heritage Foundation, a private organization, initiated the FOIA lawsuit, and that the court's own majority included an Obama appointee who found Biden's arguments unpersuasive on the merits.
The timing adds another dimension. Breitbart reported that Biden is preparing to release a new memoir scheduled for November 17, two weeks after the 2026 midterm elections, for which he reportedly received a $10 million advance. The release of raw, unpolished audio from his earlier ghostwriting sessions could undermine the carefully managed narrative of any new book.
Biden withdrew from the 2024 presidential race roughly four months after a debate performance widely described as disastrous. The Biden family's return to public life has not quieted the questions that dogged his final year in office, it has revived them.
The court has given Biden until August 3 to decide his next move. He could seek a rehearing before the full D.C. Circuit or petition the Supreme Court. But each step extends a legal fight that keeps the story, and the underlying questions about his cognitive fitness, in the public eye.
Meanwhile, the Heritage Foundation's FOIA case has already established a principle that Biden's team plainly hoped to avoid: that recordings made in a former official's living room become the public's business once a federal investigation puts them in the government's hands. A lower court had already cleared the DOJ to hand the recordings over, and the appeals court has now affirmed that conclusion.
Biden's attorneys built their case on the argument that these were private conversations between a grieving father and his book collaborator. The court acknowledged the personal nature of the material but concluded that privacy, standing alone, cannot override a legitimate FOIA request when the government holds the records and the public interest is clear.
The broader pattern is familiar. Biden fought to suppress the special counsel audio from the start, and his team has consistently framed every disclosure as a partisan attack rather than a lawful transparency demand. Courts at two levels have now rejected that framing.
When a former president spends this much legal energy keeping the public from hearing his own voice, the recordings tend to speak for themselves, even before anyone presses play.