Merrick Garland fact-checks GOP lawmaker in real time on rules for releasing Biden tapes

Attorney General Merrick Garland fact-checked a Republican congressman on the rules of evidence during a House hearing.

Rep. Cliff Bentz (R-OR) questioned the attorney general Tuesday during a House Judiciary Committee hearing about the Department of Justice refusing to publicly release recordings of President Joe Biden's interview with special counsel Robert Hur and instead issue only a transcript.

"You are a former judge and familiar with the Best Evidence Rule," Bentz said. "I went to law school, I remember it, the discussions about best evidence. You would know it far better than I, you must've dealt with it literally hundreds of times. The Best Rvidence Rule, to the rural practitioners of country law, if you have one piece of evidence, an audiotape, you would be far more likely to use it or required as opposed to a transcript. Is that correct?"

As it turns out, the lawmaker's understanding of that rule was incorrect.

"I respect your experience, but I'm afraid the Best Evidence Rule is not applicable," Garland said. "The Best Evidence Rule is reflected in Rule 1003 in the Federal Rules of Evidence, and it provides that a duplicate is admissible for all purposes as an original unless there is a genuine dispute about the authenticity. For the reasons I have stated extensively in answers to other members, there is no genuine dispute about the authenticity of the transcripts, so the Best Evidence Rule simply has no application in this case."

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The Justice Department responded to the conservative Heritage Foundation's lawsuit seeking the release of those audiotapes by arguing that artificial intelligence and other technologies would create a "substantial risk that malicious actors could alter" the recordings to insert or delete words and change the meaning of the president's statements.

"Actually, I would agree with you in the sense we are not in federal court," Bentz said. "I also want to tell you that when -- the essence of his decision, the decision of Robert Hur, the challenge the president was facing when it comes with memory and demeanor, and I have to agree with the gentleman from North Carolina, the audiotapes of the best evidence of exactly how qualified he wasn't making the decision not to prosecute. With that I see that my time is exhausted, I yield back."

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