UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HERITAGE FOUNDATION, et al.,
Plaintiffs, No. 24-cv-645 (DLF) v.
DEPARTMENT OF JUSTICE,
Defendant.
MEMORANDUM OPINION
The Heritage Foundation and Mike Howell (plaintiffs) bring this action under the Freedom
of Information Act (FOIA), 5 U.S.C. § 552, et seq., for certain records from Special Counsel
Robert K. Hur’s investigation of now-former President Joseph R. Biden, Jr. After the Department
of Justice (Department) withheld certain transcripts and audio recordings, the parties filed cross-
motions for summary judgment. See Dkts. 33, 34. The Department recently represented that it
intends to disclose those materials, with redactions, to the plaintiffs and the House Judiciary
Committee. Dkt. 50. Before the Court is Biden’s motion to intervene. Dkt. 51. For the reasons
that follow, the Court will grant in part and deny in part the motion.
I. BACKGROUND
In January 2023, Attorney General Merrick Garland appointed Robert K. Hur as a Special
Counsel to investigate and prosecute federal crimes arising from the “possible unauthorized
removal and retention of classified documents or other records discovered at the Penn Biden
Center for Diplomacy and Global Engagement and the Wilmington, Delaware, private residence
of President Joseph R. Biden, Jr.” Appointment of Robert K. Hur as Special Counsel, Att’y Gen. Order No. 5588-2023 (Jan. 12, 2023). Hur issued his findings, Report on the Investigation Into
Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at
Locations Including the Penn Biden Center and the Delaware Private Residence of President
Joseph. R. Biden, Jr. (Report), in February 2024. See Hur Report, Dkt. 6-1. Among other things,
the Report mentioned Biden’s “diminished faculties and faulty memory,” as exhibited in his
interview with the Special Counsel’s Office and recorded interviews from 2016 and 2017 with
Mark Zwonitzer, a biographer who was working on Biden’s since-published book, Promise Me,
Dad. Id. at 248; see id. at 3, 244–48. Hur ultimately declined to prosecute Biden “for his retention
of” certain classified documents because, among other things, “the evidence [was] not sufficient
to convict” and because “[i]t would be difficult to convince a jury that they should convict
[Biden]—by then a former president well into his eighties—of a serious felony that requires a
mental state of willfulness.” Id. at 6.
In March 2024, the Heritage Foundation and its employee, Mike Howell, filed this FOIA
action against the Department seeking “all records relied upon by Special Counsel Hur to write
particular passages of the Report.” Compl. ¶ 1, Dkt. 1; see Am. Compl. ¶ 1 (same), Dkt. 6. As
relevant here, those passages included lines in which the Report referred to Biden’s recorded
conversations with Zwonitzer as “painfully slow, with Mr. Biden struggling to remember events
and straining at times to read and relay his own notebook entries.” Am. Compl. ¶ 9 (Passage 4).
After narrowing the issues, Dkt. 28, and processing relevant materials, Dkt. 32, the Department
withheld the Zwonitzer audio tapes and the majority of the written transcripts. In November 2024,
the Department moved for summary judgment, Def.’s Mot. Summ. J., Dkt. 33, and the plaintiffs
cross-moved for summary judgment, Pls.’ Mot. Summ. J., Dkt. 34. The Court stayed proceedings
in September 2025 to allow the parties to engage in additional discussions or to settle or narrow
2 the case, see September 27, 2025 Minute Order, after the Department represented that it would re-
review its withholdings, Dkt. 42.
The Department no longer seeks to withhold the Zwonitzer materials. In a May 8, 2026
filing, the Department reported that it “intends to disclose the written transcript and audio
recordings at issue in this matter, with redactions, to Congress, pursuant to a request from the Chair
of the House Judiciary Committee, as well as to Plaintiffs.” Joint Status Report 1, Dkt. 50. The
Department further stated that, if Biden intervened before May 12, 2026, it would hold off
disclosing the material until June 15, 2026. Id.
Biden moved to intervene on May 12, 2026. Intervenor Mot., Dkt. 51. He argues that he
has a right to intervene because he “has a legally protected interest in preventing the Heritage
Plaintiffs from obtaining private conversations recorded in his own home for purely personal use,
and this interest would be irrevocably harmed if Plaintiffs prevailed.” Mem. Intervenor Mot. 3,
Dkt. 51-1. Biden’s proposed answer to the plaintiffs’ amended complaint also asserts cross-claims
regarding the Department’s production of the Zwonitzer materials to the House Judiciary
Committee. See Proposed Answer ¶¶ 98–109, Dkt. 51-3. The plaintiffs oppose Biden’s
intervention, see Pls.’ Opp’n, Dkt. 59; the Department does not, see Joint Status Report 1.
II. LEGAL STANDARDS
Rule 24 of the Federal Rules of Civil Procedure “outlines two different avenues by which
a court can allow an outsider to intervene—intervention of right, and permissive intervention.”
EEOC v. Nat’l Child.’s Ctr., Inc., 146 F.3d 1042, 1044 (D.C. Cir. 1998). Rule 24(a) provides for
intervention of right when a movant can demonstrate four requirements: “1) timeliness of the
application to intervene; 2) a legally protected interest; 3) that the action, as a practical matter,
impairs or impedes that interest; and 4) that no party to the action can adequately represent the
3 potential intervenor’s interest.” Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312,
320 (D.C. Cir. 2015). Rule 24(b) provides for permissive intervention by a third party who either
“is given a conditional right to intervene by a federal statute” or “has a claim or defense that shares
with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1).
“In addition to satisfying the four elements of Rule 24—timeliness, interest, impairment of
interest, and adequacy of representation—prospective intervenors in this circuit must possess
standing under Article III of the Constitution.” Jones v. Prince George’s Cnty., 348 F.3d 1014,
1017 (D.C. Cir. 2003) “To establish standing, a party must demonstrate: (1) an injury in fact that
is concrete and particularized as well as actual or imminent; (2) a causal connection between the
injury and the challenged conduct; and (3) a likelihood, as opposed to mere speculation, that the
injury will be redressed by a favorable decision.” Nat. Res. Def. Council v. Wheeler, 955 F.3d 68,
76 (D.C. Cir. 2020) (citation modified). Because a putative intervenor’s Article III standing
“presents a question going to this [C]ourt’s jurisdiction,” the Court must address it before
evaluating intervention under Rule 24. Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732 (D.C.
Cir. 2003); see Conf. Grp., LLC v. FCC, 720 F.3d 957, 962 (D.C. Cir. 2013).
Rule 13 provides that a “pleading may state as a crossclaim any claim by one party against
a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the
original action or of a counterclaim, or if the claim relates to any property that is the subject matter
of the original action.” Fed. R. Civ. P. 13(g). “Federal Rule of Civil Procedure 13 does not
distinguish between intervenors and other parties with respect to their ability to assert
counterclaims or cross-claims.” City of Jersey City v. Consol. Rail Corp., 968 F. Supp. 2d 302,
305 (D.D.C. 2013), aff’d, No. 13-7175, 2014 WL 1378306 (D.C. Cir. Feb. 19, 2014).
4 III. ANALYSIS
The Court will grant Biden’s motion to intervene as to the Department’s production of the
Zwonitzer materials to the plaintiffs because Biden has a right to protect his privacy interests that
no party can adequately represent now that the Department has reversed its position. But the Court
will deny Biden’s motion to intervene insofar as he asserts cross-claims relating to the
Department’s production of the Zwonitzer materials to the House Judiciary Committee because an
intervenor may not press issues that have not been presented to the Court by another party.
A. Standing
Biden has constitutional standing. His proposed answer asserts that the Zwonitzer
materials, which were recorded in his home in 2016 and 2017, contain discussion of “a range of
sensitive topics,” Proposed Answer ¶ 10, including details relating to his son’s illness and death
and his decision to run for President in 2016, id. ¶¶ 10, 38. Non-consensual disclosure of these
materials, he says, will violate his rights under the Privacy Act of 1974, 5 U.S.C. § 552a, id. ¶¶ 68–
76, and “would adversely affect him, including in the form of costs to respond to the disclosure
and other financial losses,” id. ¶ 97.
Of course, “Article III standing requires a concrete injury even in the context of a statutory
violation.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016). To be “concrete,” an injury must be
“real, and not abstract.” Id. at 340 (citation modified). “As a general matter, the [Supreme] Court
has explained that history and tradition offer a meaningful guide to the types of cases that Article
III empowers federal courts to consider.” TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021)
(citation modified). “[W]ith respect to the concrete-harm requirement in particular, . . . courts
should assess whether the alleged injury to the plaintiff has a close relationship to a harm
5 traditionally recognized as providing a basis for a lawsuit in American courts.” Id. (citation
modified).
Here, Biden has shown that the production of the Zwonitzer materials will cause concrete
harm to his privacy similar to those injuries addressed by the common-law tort of intrusion upon
seclusion. See id. at 425 (“[I]njuries with a close relationship to harms traditionally recognized as
providing a basis for lawsuits in American courts . . . include, for example, reputational harms,
disclosure of private information, and intrusion upon seclusion.”); All. for Retired Ams. v. Bessent,
770 F. Supp. 3d 79, 102–03 (D.D.C. 2025) (analogizing Privacy Act violations to tort of intrusion
upon seclusion). “At common law, the essential features of intrusion upon seclusion are that the
defendant intentionally intruded ‘upon the solitude or seclusion of another or his private affairs or
concerns’ and that such intrusion ‘would be highly offensive to a reasonable person.’” All. for
Retired Ams., 770 F. Supp. 3d at 102 (quoting Restatement (Second) of Torts § 652B). As the
Department’s motion for summary judgment argued, Biden’s “discussions—recorded by Mr.
Zwonitzer for reference in drafting Mr. Biden’s memoir—were analogous to entries in a personal
diary.” Mem. Def.’s Mot. Summ. J. 1, Dkt. 33-1. Such an intrusion into a person’s private affairs,
including personal thoughts regarding the death of a family member, “would be highly offensive
to a reasonable person.” All. for Retired Ams., 770 F. Supp. 3d at 102 (quoting Restatement
(Second) of Torts § 652B). Moreover, Biden’s injury is imminent given that the Department will
produce the materials on June 15, 2026, see Joint Status Report 1; Proposed Answer ¶ 69, which
is less than a month from today.
Having found a harm that is both concrete and imminent, the Court considers whether there
exists “a causal connection between the injury and the challenged conduct” and “a likelihood, as
opposed to mere speculation, that the injury will be redressed by a favorable decision.” Nat. Res.
6 Def. Council, 955 F.3d at 76 (citation modified). The answer to both inquiries is yes. First, Biden’s
injury (the invasion of his personal privacy) flows directly from the conduct he challenges (the
disclosure of the Zwonitzer materials to the plaintiffs). Second, if Biden successfully obtains the
relief he seeks—an injunction barring the Department from disclosing the Zwonitzer materials to
the plaintiffs—there is no question that the imminent injury posed by the invasion of his privacy
will be redressed.
In short, Biden “possesses [the] standing under Article III of the Constitution” that is
necessary for his motion to intervene. Jones, 348 F.3d at 1017.
B. Rule 24(a)
Biden has the right to intervene to assert his privacy interests in preventing the
Department’s production of the Zwonitzer materials to the plaintiffs. See Fed. R. Civ. P. 24(a)(2).
First, Biden has a legally protected interest in his privacy. “[T]o determine if a legally
protected interest will be ‘impaired,’ courts ‘look to the “practical consequences” of denying
intervention.’” Waterkeeper All., Inc. v. Wheeler, 330 F.R.D. 1, 7 (D.D.C. 2018) (citation
modified) (quoting Fund for Animals, 322 F.3d at 735). In the commercial context, “preventing
the disclosure of commercially-sensitive and confidential information is a well-established interest
sufficient to justify intervention under Rule 24(a).” 100Reporters LLC v. DOJ, 307 F.R.D. 269,
275 (D.D.C. 2014).
The same logic applies to the personal information contained in the Zwonitzer materials,
for which FOIA enumerates at least two relevant exemptions. Exemption 6 protects “personnel
and medical files and similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy,” 5 U.S.C. § 552(b)(6), and Exemption 7(C) protects “records or
information compiled for law enforcement purposes,” the production of which “could reasonably
7 be expected to constitute an unwarranted invasion of personal privacy,” id. § 552(b)(7). Biden
possesses privacy interests under these exemptions even though he was the subject of a criminal
investigation and is a public figure. Jud. Watch v. Nat’l Archives & Records Admin., 876 F.3d
346, 349–50 (D.C. Cir. 2017); id. at 349 (“Where individuals have been investigated but not
charged with a crime, disclosure of material properly exempt under Exemption 7(C) represents a
severe intrusion on the privacy interests of the individual in question.” (citation modified)).
Second, the Department’s production of the Zwonitzer materials would impair Biden’s
legal interests in this action. The sensitive nature of the Zwonitzer materials means that Biden’s
privacy interests are likely substantial. Because the audio tapes and transcripts, if disseminated,
“would result in a substantial change in the status quo with respect to those [privacy] interests,
such that the task of reestablishing the status quo” would be impossible, Waterkeeper All., Inc.,
330 F.R.D. at 7 (citation modified), Biden’s legally protected interests will be impaired if the Court
were to deny intervention here.
Third, it is clear that “no party to the action can adequately represent the potential
intervenor’s interest.” Crossroads Grassroots, 788 F.3d at 320. This requirement “is satisfied if
the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of
making that showing should be treated as minimal.” Trbovich v. United Mine Workers, 404 U.S.
528, 538 n.10 (1972). Here, the Department has abandoned its earlier position that “releasing the
records would result in unwarranted harm to privacy interests that an individual maintains in
preventing the dissemination of . . . private recordings that were collected in the course of an
investigation that yielded no criminal charges,” Mem. Def.’s Summ. J. 23, and now intends to
comply with the plaintiffs’ request within a month, Joint Status Report 1. In light of that apparent
alignment among the plaintiffs and the Department, it is obvious that none of the parties is
8 adequately representing Biden’s legal interests. See 100Reporters LLC, 307 F.R.D. at 279–80
(“The divergence of interests, moreover, is especially evident in FOIA litigation, where this Court
has recognized that the plaintiff’s interest lies in disclosure, the government entity’s interest lies
in responding appropriately to the plaintiff's request, and the intervenor’s interest lies in protecting
its . . . confidential information.” (citation modified)).
Finally, Biden’s motion to intervene is timely. “[T]imeliness is to be determined from all
the circumstances, and the point to which a suit has progressed is not solely dispositive.” Cameron
v. EMW Women’s Surgical Ctr., P.S.C., 595 U.S. 267, 279 (2022) (citation modified); see Roane
v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014) (same). The plaintiffs are correct that more than
two years have passed since the filing of this suit. Pls.’ Opp’n 1. But “[h]ere, the most important
circumstance relating to timeliness is that [Biden] sought to intervene as soon as it became clear
that [his] interests would no longer be protected by the [Department].” Cameron, 595 U.S. at 279–
80 (citation modified). According to the declaration submitted by Biden’s attorney, the
Department first notified Biden of its planned disclosure on February 25, 2026, and was engaged
in negotiations about redactions and limited dissemination until the Department’s May 5, 2026
final decision to disclose the recordings and transcripts, with redactions, to the Committee and the
plaintiffs. See Jeffress Decl. ¶¶ 11–30, Dkt. 51-2. The motion to intervene, along with supporting
exhibits, was filed one week later. In consideration of these circumstances, Biden’s motion to
intervene is not dilatory.
The plaintiffs’ arguments in opposition are unavailing. They press that “Biden’s lawyers
sat on their hands for at least two-plus months knowing their ultra-thin privacy claims to cloak
disclosure of for-profit book disclosure were in danger and could be affected by the outcome of
this FOIA litigation.” Pls.’ Opp’n 8 (errors in original). In the plaintiffs’ view, Biden should have
9 intervened (1) the minute that President Donald J. Trump returned to office on January 20, 2026;
(2) when the Department released other Special Counsel materials 1 in other cases; (3) when the
Department indicated that it was “reviewing [its] withholdings” in September 2025; (4) when the
Department informed Biden’s counsel of its plan to release the Zwonitzer materials in February
2026; or, at the latest, (5) when the Department informed Biden’s counsel of its new position in
March 2026. Id. 8–13. These arguments ignore the Supreme Court’s instruction that intervenor
timeliness be evaluated from the point at which it was “clear that [the movant’s] interests would
no longer be protected by the parties.” Cameron, 595 U.S. at 280 (citation modified). Leading up
to the Department’s February 25, 2026 notification to Biden’s attorney, nothing in the
Department’s status reports made clear that it would abandon its position that “disclosure would
constitute a severe invasion of privacy with little to no meaningful or cognizable counterbalancing
public interest,” as reflected in its still-pending motion for summary judgment. See Mem. Def.’s
Mot. Summ. J. 1.
Any delay between the Department’s February 25, 2026 notification and Biden’s motion
is attributable to negotiations that, if fruitful, could have obviated the need for intervention. See
Jeffress Decl. ¶ 15 (“Over the next two months, in the hope of resolving this matter without resort
to litigation, I engaged with the Department’s attorneys to seek redactions necessary to prevent the
invasion of President Biden’s and others’ privacy.”). The plaintiffs counter that, “[b]y operation
of the English language, if one is in negotiations to resolve a matter without litigation, then it
ineluctably follows that one has already reached a state of divergent interests, even if the
1 The Court will deny the plaintiffs’ request for an evidentiary hearing as to when Biden may have learned of the Department’s disclosure of other materials from the Hur investigation, see Pls.’ Opp’n 15; Dkt. 61, because, as explained infra, those disclosures—regardless of Biden’s notice— did not make clear that the Department would abandon the legal position reflected in its still- pending motion for summary judgment.
10 divergence of interest has not yet been finalized by adverse action.” Pls.’ Opp’n 12 (emphases
omitted). But the plaintiffs ignore the fact that—until the Department’s May 5, 2026 final
decision—Biden was engaged in productive discussions that yielded some of the privacy-based
redactions that he sought. See, e.g., Jeffress Decl. ¶ 25. In short, it was not “clear” that the
Department would wholly abandon Biden’s privacy interests until negotiations gave way to a final
decision.
Finally, “even where a would-be intervenor could have intervened sooner, in assessing
timeliness a court must weigh whether any delay in seeking intervention unfairly disadvantaged
the original parties.” Roane, 741 F.3d at 151 (citation modified). The plaintiffs insist that their
settlement efforts “will be for naught if intervention is permitted” and that they “and the
Government will be prejudiced because production will—yet again—be delayed.” Pls.’ Opp’n 14.
But Biden’s intervention does not vitiate the plaintiffs’ potential settlement with the Department
because that settlement can be entered as soon as the Court resolves Biden’s asserted privacy
interests. Nor will Biden’s intervention necessarily lead to a considerable delay in resolving this
case: “Biden is prepared to participate in renewed summary judgment briefing on an expedited
basis.” Mem. Intervenor Mot. 16. And the Department, which the plaintiffs claim will also be
prejudiced, does not oppose intervention. See Joint Status Report 1. In all, a short delay for
Biden’s expedited briefing would not “unfairly disadvantage the original parties” in this case, Nat.
Res. Def. Council v. Costle, 561 F.2d 904, 908 (D.C. Cir. 1977), in light of the parties’ sudden
alignment after years of disagreement.
Accordingly, the Court will permit Biden to intervene in this case as to the plaintiffs’ FOIA
claims.
11 C. Cross-Claims
Although Biden has the right to intervene to oppose production of the Zwonitzer materials
to the plaintiffs, he may not bring cross-claims regarding the Department’s production of such
materials to the House Judiciary Committee because “it is well settled in this circuit that ‘an
intervening party may join issue only on a matter that has been brought before the court by another
party.’” Seminole Nation of Oklahoma v. Norton, 206 F.R.D. 1, 7 (D.D.C. 2001) (citation
modified) (quoting Ill. Bell Tel. Co. v. FCC, 911 F.2d 776, 786 (D.C. Cir. 1990)).
This case turns on the Department’s withholding of certain materials from the plaintiffs
under FOIA Exemptions 5, 6, and 7(C). See Def.’s Mem. Mot. Summ. J.; Pls.’ Mem. Mot. Summ.
J, Dkt. 34-1. Counts IV and V of Biden’s proposed answer, by contrast, assert that disclosure to
Congress would violate the Privacy Act and the APA, see Proposed Answer ¶¶ 98–109, and he
seeks additional equitable relief on the ground that “the Committee’s request exceeds the bounds
of Congress’s investigative authority pursuant to Article I of the United States Constitution,” id.
at 31. Such “[c]ongressional [requests] for the President’s personal information implicate weighty
concerns regarding the separation of powers,” Trump v. Mazars USA, LLP, 591 U.S. 848, 869
(2020), the adjudication of which requires careful analysis of Congress’s and a former President’s
interests, see Comm. on Ways & Means, U.S. House of Representatives v. U.S. Dep’t of Treasury,
45 F.4th 324, 333–40 (D.C. Cir. 2022) (applying tests from Mazars and Nixon v. GSA, 433 U.S.
425, 443 (1977), to congressional request for former President’s personal records). Neither the
plaintiffs nor the Department has brought those issues before this Court.
Because “an intervenor is admitted to the proceeding as it stands, . . . but is not permitted
to enlarge those issues or compel an alteration of the nature of the proceeding,” Vinson v. Wash.
Gas Light Co., 321 U.S. 489, 498 (1944), Biden cannot inject his APA claims into the plaintiffs’
12 FOIA action through intervention. Accordingly, the Court will deny Biden’s motion to intervene
as to the cross-claims asserted in Counts IV and V of his proposed answer.
CONCLUSION
For the foregoing reasons, Joseph R. Biden, Jr.’s motion to intervene, Dkt. 51, is granted
as to the plaintiffs’ FOIA claims and denied as to the cross-claims asserted in Counts IV and V of
his proposed answer. A separate order consistent with this decision accompanies this
memorandum opinion.
______________________ DABNEY L. FRIEDRICH May 21, 2026 United States District Judge