House lawmakers may ditch plans to hold Merrick Garland in contempt of Congress and instead go to court seeking Robert K. Hur’s audio recordings of his interviews with President Biden.
Republican leaders left a contempt vote off the schedule this week, even though two committees advanced the resolution on Thursday that holds Mr. Garland in contempt for refusing to turn over the tapes. The recordings memorialize Mr. Hur’s two-day interview with Mr. Biden about his mishandling of classified documents dating back to his time as a U.S. senator.
Republicans said they need the recordings to determine if the Justice Department is administering justice fairly. Mr. Biden was not charged in the case, despite storing boxes of classified documents in his garage and D.C. office.
Yet his November rival, former President Donald Trump, faces dozens of criminal charges related to a stash of classified documents he took with him after leaving office.
Republicans have so far hit the pause button on a House vote on the Garland contempt resolution.
One source familiar with the thinking said there are significant doubts that Speaker Mike Johnson, Louisiana Republican, will bring the resolution to the floor for a vote, particularly following a string of internal GOP battles over key legislation.
Republicans hold a mere one-seat advantage and with the election just a few months away, some GOP lawmakers running for reelection in districts carried by President Biden in 2020 aren’t interested in taking a vote on what many view to be a partisan matter that isn’t likely to be enforced.
“People are looking for easier votes,” the source said. “Johnson can’t afford to lose another close vote.”
A spokesperson for Mr. Johnson said the scheduling of a vote on the Garland contempt resolution is “to be determined,” and did not say that Mr. Johnson was ruling out bringing the resolution to the floor.
While Mr. Johnson mulls how to proceed, Rep. Anna Paulina Luna, Florida Republican, has filed a separate resolution to hold Mr. Garland in inherent contempt of Congress for refusing to comply with two House committee subpoenas demanding the audio tapes.
The long-dormant inherent contempt power, according to the Congressional Research Service, authorizes the House under its own constitutional authority to detain and imprison anyone found in contempt “until the individual complies with congressional demands.”
Ms. Luna said she would bring up her resolution this month.
“I fully intend to hold Attorney General Merrick Garland in inherent contempt of Congress if the Department of Justice does not do their job,” Ms. Luna said.
Her resolution is likely to face the same hurdles on the House floor as the committee-passed contempt resolution frowned on by GOP moderates.
Republicans could have a better shot at obtaining the Hur tapes in civil court, and are weighing that option, sources said.
But it could take months, or even years, to get their hands on the material.
House lawmakers passed a resolution holding Attorney General Eric Holder in contempt of Congress in 2012 for failing to turn over documents and other evidence related to the Justice Department’s flawed gun-walking investigation known as Operation Fast and Furious. Mr. Holder, the attorney general for Mr. Obama, was never penalized, but the House voted separately to authorize a civil case that helped them get many of the documents Mr. Holder was refusing to turn over.
The case dragged on for seven years and House lawmakers reached a final settlement with the Justice Department in 2019. Along the way, the court ordered Justice Department officials to hand over much of the material related to Fast and Furious, including a large batch of documents turned over to the House Oversight panel in 2016.
Unlike a civil court case, the criminal contempt statute is enforced by the Justice Department, making it all but certain that if the House passes the contempt citation forwarded by the Judiciary and Oversight committees, Mr. Garland won’t be prosecuted.
An individual prosecuted and convicted faces a fine of up to $100,000 and imprisonment “for not less than one month nor more than twelve months,” but contempt citations of high-level administration officials have rarely led to criminal penalties, mostly due to the assertion of executive privilege.
Hours before the two committees voted to hold Mr. Garland in contempt, President Biden asserted executive privilege over the audio tapes, adding a layer of protection that would likely forestall prosecution.
Days after the GOP-led House voted to hold Mr. Holder in criminal contempt over the Fast and Furious documents, the White House and Justice Department said they wouldn’t prosecute, citing executive privilege asserted back then by Mr. Obama.
“It is an established principle, dating back to the administration of President Ronald Reagan, that the Justice Department does not pursue prosecution in a contempt case when the president has asserted executive privilege,” White House spokesman Jay Carney said at the time.
The Obama Justice Department also refused to prosecute former IRS official Lois Lerner, who the GOP-led House voted to hold in contempt of Congress for refusing to testify about the agency’s targeting of conservative non-profit groups.
Since 2019, the House has passed six criminal contempt of Congress citations, all involving high-ranking Trump administration officials.
The Justice Department did not prosecute contempt citations filed against former White House Chief of Staff Mark Meadows, former Commerce Department Secretary Wilbur Ross, former Attorney General William Barr or Deputy Chief of Staff Dan Scavino.
Two former Trump officials were prosecuted by the Biden-led Justice Department and convicted by D.C. juries, despite asserting executive privilege.
Peter Navarro, who served as White House trade adviser in the Trump administration, reported to prison in March to serve a four-month sentence for refusing to testify before a Democrat-led committee probing the January 6, 2021 riot at the Capitol.
Steve Bannon, a former White House adviser, was sentenced to four months for refusing to testify before the same panel. He remains free pending appeal.
Republicans eager to hold Mr. Garland in contempt said justice has been meted out unfairly and that the attorney general must be held to the same standards that led to the convictions of Bannon and Navarro when Democrats controlled the House and held them in contempt of Congress.
“Today, right now, Peter Navarro is sitting in jail because he was held in contempt of Congress,” Rep. Marjorie Taylor Greene, Georgia Republican, said. “Steve Bannon has also been held in contempt of Congress and could go to jail soon. These are the consequences.”
Moderate Republicans running in 2024 have sought to distance themselves from the Garland contempt resolution, especially after a heated Oversight hearing on the matter devolved into an ugly exchange of taunts between Ms. Greene and liberal “Squad” member Rep. Alexandria Ocasio-Cortez, New York Democrat.
Former Maryland Gov. Larry Hogan, the Republican nominee for Senate, called the fracas at the Oversight Committee a “dumpster fire.”
“I am completely fed-up with politicians in Washington who seem to be more interested in attacking each other than in actually getting anything done for the people they represent. Enough is enough. Time for change,” he wrote on X.
• Susan Ferrechio can be reached at sferrechio@washingtontimes.com.