Attorney General Merrick Garland responded on Wednesday to the House voting almost entirely along party lines to hold him in contempt of Congress, calling the move “deeply disappointing.”
Garland said it transformed contempt, a rare move lawmakers use as a last resort to enforce subpoenas, from a “serious congressional authority” into a “partisan weapon.”
Republicans initiated contempt proceedings in response to Garland refusing to provide the audio recordings of an interview conducted last October between then-special counsel Robert Hur and President Joe Biden.
Biden asserted executive privilege over the recordings last month as Republicans ramped up pressure to obtain them.
“Today’s vote disregards the constitutional separation of powers, the Justice Department’s need to protect its investigations, and the substantial amount of information we have provided to the Committees,” Garland said.
The House voted on the contempt measure on a narrow margin of 216 to 207. All but one Republican voted in favor of it, while all Democrats voted against it.
It came after a monthslong standoff between the Department of Justice and two committees, the House Judiciary and Oversight committees, which have been leading an impeachment inquiry into Biden. The committees had asked the DOJ, as part of their inquiry, for numerous records related to Hur’s investigation into Biden’s handling of classified material.
As Garland emphasized in his statement, the DOJ complied almost entirely with the lawmakers’ requests, including by providing a transcript of Biden’s interview with Hur.
However, the committees were dissatisfied with seeing only the transcript, which had confirmed Hur’s findings that Biden, 81, had displayed memory lapses at certain points during the interview.
Hur had used the interview as one of his justifications for declining to prosecute Biden for mishandling classified material from his time as vice president and senator. In a brutal assessment of Biden’s mental acuity, the special counsel said the president came off as a “sympathetic, well-meaning, elderly man with a poor memory” who could give a jury pause as to whether he acted with intent.
The committees subpoenaed Garland for the audio of the interview, and at the direction of the attorney general, Biden responded by asserting executive privilege over it, which effectively protected it from Congress.
Republicans escalated matters by carrying out the contempt proceedings. Garland on Wednesday became the fourth Cabinet member in history to be held in contempt, after former Attorneys General Eric Holder and Bill Barr and former Commerce Secretary Wilbur Ross also received such condemnations.
When a House votes to refer a person to the DOJ for contempt of Congress, the department, and specifically the U.S. attorney’s office in Washington, D.C., has discretion over whether to act on the referral and initiate prosecution.
Garland’s contempt referral will hit a dead end in the DOJ, which indicated in previous communications to Congress that it saw no legal basis for contempt because it involved executive privilege.
An Office of Legal Counsel memo obtained by the Washington Examiner detailed the DOJ’s position that the House has no ability to overcome Biden’s privilege assertion.
The memo, which was written by several DOJ officials to Garland in May, stated that for nearly 70 years and across several administrations, the executive branch has found that the criminal contempt statute cannot be used against officials, such as Garland, who are adhering to executive privilege.
“Consistent with this longstanding position, no U.S. Attorney has pursued criminal contempt charges against an Executive Branch official asserting the President’s claim of executive privilege,” the memo read.
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Republicans still have another option to attempt to obtain the audio. According to their contempt report, they can also move to sue the DOJ as a way to enforce their subpoena of the recordings.
The conservative groups Judicial Watch and the Heritage Foundation, along with a CNN-led media coalition, have all already filed their own lawsuits against the DOJ to obtain the audio separately from Congress. The department is fighting those efforts as well.
