The GOP-led House Judiciary Committee advanced an effort to hold Attorney General Merrick Garland in contempt of Congress Thursday, after he withheld recordings of a prosecutor’s interviews with President Joe Biden—but even if Garland becomes the third attorney general in the last 12 years to be held in contempt, he’s unlikely to face charges.
Attorney General Merrick Garland testifies during the House Appropriations Subcommittee on Commerce, ... [+]
The Judiciary committee voted to recommend the House hold Garland in contempt after the Justice Department rejected a February subpoena from the Judiciary and Oversight committees for recordings of Biden's interviews with Special Counsel Robert Hur, which were recorded as part of a classified documents probe that resulted in no criminal charges but ended with Hur saying Biden showed "poor memory”—a point many Republicans have focused on.
The DOJ rejected the subpoena, citing concerns the release of the tapes could deter future witnesses from cooperating, which led some House Republicans to threaten to hold Garland in "contempt of Congress," essentially recommending he be criminally prosecuted for not cooperating.
Even if the full House votes to hold Garland in contempt, actual criminal charges are highly unlikely: It's up to the DOJ to bring contempt of Congress charges, and the agency rarely chooses to move forward with presenting those charges to a grand jury—especially when it's a member of the administration.
Since 2008, Congress has held ten individuals in contempt of Congress, and the Justice Department has only indicted two: former Trump White House advisers Steve Bannon and Peter Navarro, who were both convicted for refusing to comply with subpoenas from the House Jan. 6 committee in its investigation into the Capitol riots.
The Biden administration may have further shielded Garland when it asserted executive privilege to prevent the recordings from being released to Congress on Thursday, superseding the DOJ’s authority over the recordings.
The DOJ has repeatedly concluded officials acting under the president’s claim of executive privilege are protected from prosecution for contempt of Congress, including when Congress held former Attorney Generals Eric Holder and William Barr in contempt in 2012 and 2019, respectively.
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Oversight Chair Rep. James Comer, R-Ky., disagreed that executive privilege absolves Garland, arguing in a statement Thursday that Biden waived his executive privilege when he allowed transcripts of the interviews to be released and vowing to move forward with the contempt proceedings.
"We have gone to extraordinary lengths to ensure that the committees get responses to their legitimate requests but this is not one," Garland told reporters Thursday. "To the contrary, this is one that would harm our ability in the future to successfully pursue sensitive investigations."
The Republican-led House Oversight and Judiciary Committees could vote as soon as Thursday to refer contempt resolutions against Garland to the full House for a formal vote. It’s unclear whether House Speaker Mike Johson, R-La., would introduce the resolutions on the House floor.
Since 2008, two other attorney generals, Barr and Holder, have been held in contempt of Congress. The Republican-controlled House voted in 2012 to hold Holder in contempt for refusing to turn over documents related to the Justice Department’s probe into the “Fast and Furious” gunwalking operation designed to track down Mexican cartels by allowing them to purchase illegal firearms. Former President Barack Obama also asserted executive privilege over the documents Holder refused to release, and the Justice Department declined to prosecute him. The House in 2019, then under control of Democrats, voted to hold Barr and former Commerce Secretary Wilbur Ross in contempt for refusing to release documents related to the Trump administration’s failed attempt to include a citizenship question on the 2020 census. Former President Donald Trump also declared executive privilege over the documents minutes before the House vote. The Justice Department declined to prosecute Barr and Ross, citing, in part, its “long-standing position . . . that we will not prosecute an official for contempt of Congress for declining to provide information subject to a presidential assertion of executive privilege.”
The Hur investigation started after Biden’s personal attorneys discovered what his legal team described as a “small number” of classified documents in his former office at the Penn Biden Center in late 2022. Justice Department investigators later recovered additional documents, dating back to his tenures as vice president and as a U.S. senator, in his Delaware home. Hur was appointed to investigate whether Biden should be criminally prosecuted for the matter, and cleared the president in February, determining that he had “willfully” retained about 50 classified documents, but the evidence did not establish guilt beyond a reasonable doubt. Hur also concluded a jury would be hard-pressed to convict Biden, who could present himself as a “sympathetic, well-meaning, elderly man with a poor memory,” Hur wrote. The characterization—along with Hur’s claims that Biden forgot key dates in DOJ interviews, including the year his son Beau Biden died and when he served as vice president—fueled concerns about Biden’s mental fitness.
The Judiciary and Oversight committees requested the Hur-Biden recordings as part of their floundering impeachment probe into the president, which centers around unproven allegations Biden used the office of the vice president to advance his family’s business dealings. The committees expressed “concern” that some of the foreign policy documents the Justice Department found at Biden’s Delaware home and Washington, D.C. office may have “related to specific countries involving his family’s foreign business dealings,” Comer and Judiciary Chair Rep. Jim Jordan, R-Ohio, said in a statement announcing the subpoenas in February. The committees also said they wanted to know if Biden’s attorneys limited the topics covered in the interviews.” In addition, Comer argued the subpoenaed recordings would “provide transparency” surrounding concerns about the 81-year-old president’s mental state.
Biden Forgot When He Served As Vice President And Year Of Son’s Death In DOJ Interview (Forbes)