(CNN) — A federal appeals court in Washington, DC, has decided that public interest in recordings of Joe Biden speaking about his life in politics in 2016 and 2017 outweighs any legal claims he has made for privacy.
The decision, from a 2-1 panel of DC US Circuit Court of Appeals judges, sets up the possible release of the tapes, which are being sought by both the Heritage Foundation and by House Republicans who claim they may highlight Biden’s aging and memory struggles years before he became president.
“Any remaining incursion on personal privacy from disclosure of the now-redacted materials likely does not outweigh the public interest in disclosure,” the court said late Monday night.
Yet neither Heritage nor the House will be getting access to the tapes immediately, as Biden continues his court fight. The court put its ruling on hold to allow Biden to appeal if he chooses.
An attorney for Biden didn’t immediately respond to inquiries from CNN.
Biden still may attempt other appeals, but his efforts are a long shot The recordings are of Biden speaking to his ghostwriter for his memoir, “Promise Me, Dad,” which are now in the hands of the Justice Department.
After Biden left the presidency and Donald Trump became president, the Justice Department decided it no longer opposed releasing the tapes, either to the public or to Congress, prompting Biden to sue.
Right-wing legal advocacy group the Heritage Foundation has said it wants to obtain the recordings to shed more light on a criminal investigation into Biden, which resulted in no charges, and his declining health over the past decade, especially during the election season this year.
The group argued the recordings are government records accessible to the public, because they had been obtained by the former Justice Department special counsel Robert Hur as he looked at whether Biden improperly disclosed national security details to the ghostwriter.
The DC Circuit largely agreed on Tuesday they are government records and worthy of pubic access.
“The public interest in disclosure of the requested materials is substantial,” the appeals panel, of Judges Sri Srinivasan and Gregory Katsas, wrote.
“The public has a ‘weighty’ and ‘significant’ interest in ‘shining a light’ on the Special Counsel’s investigation of a former Vice President for alleged mishandling and disclosure of classified information,” the Circuit judges added, citing language from other legal opinions.
“When a highly visible investigation of a prominent public figure ends in a decision not to charge, the public has a strong interest in evaluating ‘whether the government had the evidence but nevertheless pulled its punches,” they added. (Srinivasan was appointed by former President Barack Obama; Katsas by President Donald Trump during his first term.)
Appellate court Judge Florence Pan disagreed with the court’s decision. She wrote that the conversations had “substantial” privacy concerns, because Biden’s conversations with the ghostwriter took place in his home, and that he was never charged with a crime.
“Even though the conversations were with an author who was helping Biden to write his memoir, Biden presumably had editorial control over the contents of the book and could decide what information ultimately would be made public — he had no expectation that recordings or transcripts of hours of private conversation, across several sessions, would someday be released over his objection,” wrote Pan, a Biden nominee.
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