OPINION:
On May 12, lawyers for “Joseph R. Biden Jr.” filed a motion to intervene in a two-year-old lawsuit under the Freedom of Information Act (FOIA) against the Department of Justice.
They are seeking intelligence gathered by special counsel Robert Hur, who found evidence that Mr. Biden, after serving as vice president, “willfully retained and disclosed classified materials” to his memoir ghostwriter.
In his February 2024 report, Mr. Hur declined to recommend prosecution because “Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.” He concluded: “It would be difficult to convince a jury that they should convict him — by then a former president well into his 80s — of a serious felony that requires a mental state of willfulness.”
Lawyers representing the now two years older “elderly man with a poor memory” claim that “President Biden is forced to seek intervention to protect his privacy interests and to advocate for the faithful application of the law, given that the Department has abandoned its duty to do so in this matter.”
The case is captioned Heritage Foundation and Mike Howell v. U.S. Department of Justice, Case No. 24-645 in the U.S. District Court for the District of Columbia.
According to the motion to intervene, the Department of Justice “plans to release the recordings and transcripts at issue to Plaintiffs and to Congress on June 15, 2026, absent a court order barring release.” The member of Congress who requested these recordings and transcripts is House Judiciary Chairman Jim Jordan, Ohio Republican, who is not a party to the FOIA case.
The motion to intervene by lawyers purporting to represent Mr. Biden is an attempt to perpetuate an illegal conspiracy to deprive American citizens of their basic right to know how their government is spending their money.
In my June 2025 article, “We Have a Right to Know Who Propped Up Biden,” I drew upon my experience as an inspector general to suggest that “One apparent crime that needs to be investigated is who, by name, directed that President Biden’s autopen signature be affixed to pardons without President Biden’s full knowledge.”
I cite Title 18, Section 912, which makes it a crime to pretend “to be an officer or employee acting under the authority of the United States.” It is punishable by up to three years in prison.
Now, we have a right to know who is propping up Mr. Biden in the FOIA motion to intervene.
Based on the motion, it is doubtful that the would-be intervenor should be allowed to intervene on account of his obvious cognitive disability. It is also unclear who is really behind the would-be intervenor.
Plaintiff Mike Howell is president of the Oversight Project: It’s Your Government, a non-profit formerly part of Heritage Foundation, which is dedicated to shedding light on facts for the American people. The Oversight Project has published four investigatory reports on the autopen scandal, including statistical and legal analyses of the Biden White House’s autopen practices.
The motion to intervene would convert what is a straightforward FOIA case into a constitutional case implicating what President Trump has called second “BIGGEST POLITICAL SCANDAL IN AMERICAN HISTORY.”
Moreover, the motion unnecessarily raises separation of powers issues, as it requests that this court prevent the Justice Department from disclosing information requested by Mr. Jordan — without the chairman even having an opportunity to express his views to the court.
The court should take judicial notice of the ongoing controversy over former President Biden’s cognitive disability, both while he was serving as president and now. Although this is FOIA litigation, under another statute, the Presidential Records Act, Congress has indicated an intent to allow the sitting president, through the archivist of the United States, to override privacy concerns of a prior president with a “disability.”
Under Title 44 of U.S. code, Section 2204(d), “Upon the death or disability of a President or former President, any discretion or authority the President or former President may have had under this chapter, except section 2208, shall be exercised by the Archivist.” Section 2208 addresses “Claims of constitutionally based privilege against disclosure,” which are not implicated in the FOIA litigation.
On May 21, the court granted the motion to intervene by those purporting to represent Joe Biden. The court did not, however, grant Mr. Biden the right to proceed to block disclosure by the executive branch to Rep. Jordan.
It remains to be seen whether Mr. Biden’s lawyers will risk turning this fight into a major flash point of the separation of powers.
• The Honorable Joseph E. Schmitz is distinguished constitutional fellow with the Oversight Project.
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