{"id":158452,"date":"2026-07-27T11:43:54","date_gmt":"2026-07-27T19:43:54","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/07\/27\/law-and-chaos-heritage-foundation\/"},"modified":"2026-07-27T11:43:54","modified_gmt":"2026-07-27T19:43:54","slug":"law-and-chaos-heritage-foundation","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/07\/27\/law-and-chaos-heritage-foundation\/","title":{"rendered":"Law And Chaos + Heritage Foundation?!?!"},"content":{"rendered":"

Last year when our podcast Law and Chaos<\/a> filed a FOIA lawsuit<\/a> against the Justice Department, we knew things might get weird.<\/p>\n

And they did<\/a>!<\/p>\n

What we didn\u2019t expect is that we\u2019d be making common cause with the conservative Heritage Foundation as it seeks to embarrass Joe Biden years after he left office. Politics really does lead to strange bedfellows \u2014 and so does litigation.<\/p>\n

Judicial intimidation \u2014 I know you are, but what am I<\/h2>\n

Almost exactly a year ago, DOJ Chief of Staff Chad Mizelle hand-delivered an ethics complaint<\/a> to the DC Circuit. The complaint accused Chief Judge James Boasberg of the US District Court for the District of Columbia of \u201cattempt[ing] to improperly influence Chief Justice Roberts and roughly two dozen other federal judges.\u201d It alleged that Judge Boasberg inappropriately suggested at the March 2025 meeting of the Judicial Conference that the Trump Administration was prepared to \u201cdisregard rulings of federal courts\u201d and thereby \u201ctrigger a constitutional crisis.\u201d<\/p>\n

Of course, that is exactly what came to pass in Judge Boasberg\u2019s courtroom, just a few days later on March 15. Instead of turning around the plane stuffed with men headed for CECOT in El Salvador, the government launched two additional flights, and Judge Boasberg has been trying to get to the bottom of the contempt ever since.<\/p>\n

Mizelle\u2019s nastygram was vague on the source of its information, simply dropping a footnote to \u201cAttachment A at 16.\u201d But no such attachment was included in the copy of the complaint slipped to reporters last July, and, as Law and Chaos later found out<\/a>, the attachment wasn\u2019t given to Judge Srinivasan either. All of which strongly implies that this \u201ccomplaint\u201d was nothing more than a publicity stunt and an attempt to engage in some of that judicial intimidation the DOJ says it despises.<\/p>\n

Initially we filed a FOIA request<\/a> asking the Justice Department to give us Attachment A. We expected the government to refuse \u2014 which they did<\/a>. We did not expect them to put our request for a single document <\/em>on the \u201ccomplex\u201d track while claiming that we had failed to show that our request was tied to a \u201cmatter of widespread and exceptional media interest.\u201d After all, then-AG Pam Bondi was fulminating on X that Judge Boasberg\u2019s comments \u201chave undermined the integrity of the judiciary, and we will not stand for that.\u201d So in August we sued<\/a> the DOJ in federal court in Maryland.<\/p>\n

\n
\n
\n

Today at my direction, @TheJusticeDept<\/a> filed a misconduct complaint against U.S. District Court Chief Judge James Boasberg for making improper public comments about President Trump and his Administration.<\/p>\n

These comments have undermined the integrity of the judiciary, and we will\u2026<\/p>\n

\u2014 Attorney General Pamela Bondi (@AGPamBondi) July 28, 2025<\/a><\/p><\/blockquote>\n<\/div>\n<\/figure>\n

In this litigation, the government has taken the very odd position that \u201cAttachment A\u201d is not<\/em> subject to FOIA because it was created by the judiciary and thus is not an executive \u201cagency record.\u201d<\/p>\n

That argument is simply wrong. As our lawyer, Kel McClanahan, Executive Director at National Security Counselors<\/a>, explained<\/a>:<\/p>\n

\n

FOIA applies to all agency records. It does not apply to Congressional or Judicial records. But it does apply to records which originated outside an agency but were later put into the agency\u2019s files for its own purposes.<\/p>\n<\/blockquote>\n

In other words, even if \u201cAttachment A\u201d was initially drafted by the judiciary, once the executive branch received it and relied upon it in crafting that ethics complaint against Judge Boasberg, \u201cAttachment A\u201dwas transformed into an agency record.<\/p>\n

And last week the DC Circuit agreed with us \u2026 sort of.<\/p>\n

\u2018Agency record\u2019 is not in the eye of the beholder<\/h2>\n

The case in DC involved approximately 70 hours of audio recordings and transcripts of Biden speaking with his biographer Mark Zwonitzer. The tapes resurfaced during Special Counsel Robert Hur\u2019s investigation into the retention of classified materials after Biden\u2019s vice presidency ended in 2016.<\/p>\n

Hur recommended<\/a> that no charges be filed because, in his view, a jury wouldn\u2019t convict a \u201csympathetic, well-meaning, elderly man with a poor memory.\u201d He described Biden\u2019s \u201cpainfully slow\u201d cadence, with the then-president \u201cstruggling to remember events and straining at times to read and relay his own notebook entries.\u201d<\/p>\n

Republicans are still hoping to lock up Hillary Clinton, who hasn\u2019t been a government employee since 2013, so naturally the \u201cBiden Tapes\u201d are a prime target.<\/p>\n

The Heritage Foundation requested the recordings in February of 2024, and got rebuffed by the Biden DOJ. The following month, Heritage filed a FOIA suit<\/a> in DC that landed on the docket of Judge Dabney Friedrich, a Trump appointee. That case dragged along for two years, but, in the meantime, House Judiciary Committee Chair Jim Jordan sent a formal request<\/a> to the DOJ in March of 2026 requesting that it release the tapes.<\/p>\n

Naturally, AG Bondi agreed \u2014 it was one of her final official acts before getting fired. Biden moved for a preliminary injunction, but Judge Friedrich refused<\/a> to enjoin the release. Biden appealed<\/a> to the DC Circuit, which declined<\/a> last week to block the release. Rather than press on to the Supreme Court, Biden decided to throw in the towel<\/a> on Friday the 24th.<\/p>\n

The DC Circuit found<\/a> that, while the tapes were created as non-agency records, \u201cthey became subject to FOIA\u2019s disclosure mandate when the Special Counsel obtained possession of them as part of his investigation.\u201d<\/p>\n

In other words: even though the recordings were not<\/em> agency records when Biden and Zwonitzer created them, they become agency records when the Department of Justice relied upon them as part of Hur\u2019s work.<\/p>\n

Obviously, we took notice!<\/p>\n

Cough it up, Blanche<\/h2>\n

Last week we filed a notice of supplemental authority<\/a>, highlighting the DOJ\u2019s rank hypocrisy. The Federal Programs Branch vehemently opposes<\/a> our FOIA request on the theory that \u201cAttachment A\u201d is not a government record. And yet it never once made that argument about recordings which would embarrass the president\u2019s rival. The DOJ never<\/em> attempted to claim that the Biden Tapes were outside FOIA simply because they had been created outside of the executive branch. Indeed, none of the DOJ\u2019s argumentation in that case even mentioned \u201cagency records\u201d at all.<\/p>\n

We\u2019re not saying that we enjoy sitting on the bench with the Heritage Foundation. But getting our hands on \u201cAttachment A\u201d will certainly soften the blow.<\/p>\n

\n

Liz Dye<\/a>\u00a0produces the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe by clicking the logo:<\/strong><\/em><\/p>\n

\"\"<\/a><\/figure>\n

The post Law And Chaos + Heritage Foundation?!?!<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
\n\t\t\t\t\t\t\t(Photo by Anna Moneymaker\/Getty Images)\t\t\t\t\t\t<\/figcaption><\/figure>\n

Last year when our podcast Law and Chaos<\/a> filed a FOIA lawsuit<\/a> against the Justice Department, we knew things might get weird.<\/p>\n

And they did<\/a>!<\/p>\n

What we didn\u2019t expect is that we\u2019d be making common cause with the conservative Heritage Foundation as it seeks to embarrass Joe Biden years after he left office. Politics really does lead to strange bedfellows \u2014 and so does litigation.<\/p>\n

Almost exactly a year ago, DOJ Chief of Staff Chad Mizelle hand-delivered an ethics complaint<\/a> to the DC Circuit. The complaint accused Chief Judge James Boasberg of the US District Court for the District of Columbia of \u201cattempt[ing] to improperly influence Chief Justice Roberts and roughly two dozen other federal judges.\u201d It alleged that Judge Boasberg inappropriately suggested at the March 2025 meeting of the Judicial Conference that the Trump Administration was prepared to \u201cdisregard rulings of federal courts\u201d and thereby \u201ctrigger a constitutional crisis.\u201d<\/p>\n

Of course, that is exactly what came to pass in Judge Boasberg\u2019s courtroom, just a few days later on March 15. Instead of turning around the plane stuffed with men headed for CECOT in El Salvador, the government launched two additional flights, and Judge Boasberg has been trying to get to the bottom of the contempt ever since.<\/p>\n

Mizelle\u2019s nastygram was vague on the source of its information, simply dropping a footnote to \u201cAttachment A at 16.\u201d But no such attachment was included in the copy of the complaint slipped to reporters last July, and, as Law and Chaos later found out<\/a>, the attachment wasn\u2019t given to Judge Srinivasan either. All of which strongly implies that this \u201ccomplaint\u201d was nothing more than a publicity stunt and an attempt to engage in some of that judicial intimidation the DOJ says it despises.<\/p>\n

Initially we filed a FOIA request<\/a> asking the Justice Department to give us Attachment A. We expected the government to refuse \u2014 which they did<\/a>. We did not expect them to put our request for a single document <\/em>on the \u201ccomplex\u201d track while claiming that we had failed to show that our request was tied to a \u201cmatter of widespread and exceptional media interest.\u201d After all, then-AG Pam Bondi was fulminating on X that Judge Boasberg\u2019s comments \u201chave undermined the integrity of the judiciary, and we will not stand for that.\u201d So in August we sued<\/a> the DOJ in federal court in Maryland.<\/p>\n

In this litigation, the government has taken the very odd position that \u201cAttachment A\u201d is not<\/em> subject to FOIA because it was created by the judiciary and thus is not an executive \u201cagency record.\u201d<\/p>\n

That argument is simply wrong. As our lawyer, Kel McClanahan, Executive Director at National Security Counselors<\/a>, explained<\/a>:<\/p>\n

\n

FOIA applies to all agency records. It does not apply to Congressional or Judicial records. But it does apply to records which originated outside an agency but were later put into the agency\u2019s files for its own purposes.<\/p>\n<\/blockquote>\n

In other words, even if \u201cAttachment A\u201d was initially drafted by the judiciary, once the executive branch received it and relied upon it in crafting that ethics complaint against Judge Boasberg, \u201cAttachment A\u201dwas transformed into an agency record.<\/p>\n

And last week the DC Circuit agreed with us \u2026 sort of.<\/p>\n

The case in DC involved approximately 70 hours of audio recordings and transcripts of Biden speaking with his biographer Mark Zwonitzer. The tapes resurfaced during Special Counsel Robert Hur\u2019s investigation into the retention of classified materials after Biden\u2019s vice presidency ended in 2016.<\/p>\n

Hur recommended<\/a> that no charges be filed because, in his view, a jury wouldn\u2019t convict a \u201csympathetic, well-meaning, elderly man with a poor memory.\u201d He described Biden\u2019s \u201cpainfully slow\u201d cadence, with the then-president \u201cstruggling to remember events and straining at times to read and relay his own notebook entries.\u201d<\/p>\n

Republicans are still hoping to lock up Hillary Clinton, who hasn\u2019t been a government employee since 2013, so naturally the \u201cBiden Tapes\u201d are a prime target.<\/p>\n

The Heritage Foundation requested the recordings in February of 2024, and got rebuffed by the Biden DOJ. The following month, Heritage filed a FOIA suit<\/a> in DC that landed on the docket of Judge Dabney Friedrich, a Trump appointee. That case dragged along for two years, but, in the meantime, House Judiciary Committee Chair Jim Jordan sent a formal request<\/a> to the DOJ in March of 2026 requesting that it release the tapes.<\/p>\n

Naturally, AG Bondi agreed \u2014 it was one of her final official acts before getting fired. Biden moved for a preliminary injunction, but Judge Friedrich refused<\/a> to enjoin the release. Biden appealed<\/a> to the DC Circuit, which declined<\/a> last week to block the release. Rather than press on to the Supreme Court, Biden decided to throw in the towel<\/a> on Friday the 24th.<\/p>\n

The DC Circuit found<\/a> that, while the tapes were created as non-agency records, \u201cthey became subject to FOIA\u2019s disclosure mandate when the Special Counsel obtained possession of them as part of his investigation.\u201d<\/p>\n

In other words: even though the recordings were not<\/em> agency records when Biden and Zwonitzer created them, they become agency records when the Department of Justice relied upon them as part of Hur\u2019s work.<\/p>\n

Obviously, we took notice!<\/p>\n

Last week we filed a notice of supplemental authority<\/a>, highlighting the DOJ\u2019s rank hypocrisy. The Federal Programs Branch vehemently opposes<\/a> our FOIA request on the theory that \u201cAttachment A\u201d is not a government record. And yet it never once made that argument about recordings which would embarrass the president\u2019s rival. The DOJ never<\/em> attempted to claim that the Biden Tapes were outside FOIA simply because they had been created outside of the executive branch. Indeed, none of the DOJ\u2019s argumentation in that case even mentioned \u201cagency records\u201d at all.<\/p>\n

We\u2019re not saying that we enjoy sitting on the bench with the Heritage Foundation. But getting our hands on \u201cAttachment A\u201d will certainly soften the blow.<\/p>\n

\n

Liz Dye<\/a>\u00a0produces the Law and Chaos\u00a0Substack\u00a0<\/a>and\u00a0podcast<\/a>.<\/strong><\/em>\u00a0You can subscribe by clicking the logo:<\/strong><\/em><\/p>\n

\"\"<\/a><\/figure>\n","protected":false},"excerpt":{"rendered":"

Last year when our podcast Law and Chaos filed a FOIA lawsuit against the Justice Department, we knew things might get weird. And they did! What we didn\u2019t expect is that we\u2019d be making common cause with the conservative Heritage Foundation as it seeks to embarrass Joe Biden years after he left office. Politics really […]<\/p>\n","protected":false},"author":3,"featured_media":158438,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-158452","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2026\/07\/law-and-chaos-logo-liz-dye-300x153-qIV9bY.jpg?fit=300%2C153&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/158452","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=158452"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/158452\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/158438"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=158452"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=158452"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=158452"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}