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The U.S. House is expected Wednesday to vote on a resolution holding Attorney General Merrick Garland in contempt of Congress for refusing to turn over audio of President Joe Biden’s interview in his classified documents case, a move that comes just weeks after the White House blocked release of the recording to lawmakers.
The contempt action represents House Republicans’ latest and strongest rebuke of the Justice Department and of Garland’s leadership, playing out against the backdrop of an extraordinary conflict over the rule of law that has animated the 2024 presidential campaign. Republicans have denounced the pending criminal cases into former President Donald Trump, their presumptive nominee for the White House, while making sweeping claims about what they view as corruption in Biden’s administration.
“We have to defend the Constitution. We have to defend the authority of Congress,” House Speaker Mike Johnson said at a press conference. “We can’t allow the Department of Justice and Executive Branch hide information from Congress.”
Yet despite the GOP feelings about Garland, it remains uncertain if Johnson can garner enough support on the floor to pass the contempt resolution. Republicans have the slimmest of majorities, which means that any bill that lacks Democratic support — like the contempt resolution — can quickly collapse if even a few Republicans defect.
Republican leaders looked to ease concerns about the vote count Wednesday morning coming out of their weekly conference meeting.
“We just talked about it with the membership. Nobody raised any questions. Obviously, with a two-seat majority, everything is close. … I think people understand how important it is to get it done and to get the facts out,” Majority Leader Steve Scalise said.
“Ronald Reagan said trust but verify. Why not show the audio to verify?” he added.
Republicans were incensed when Special Counsel Robert Hur declined to prosecute Biden over his handling of classified documents and quickly opened an investigation. GOP lawmakers — led by Reps. Jim Jordan and James Comer — sent a subpoena for audio of Hur’s interviews with Biden during the spring. But the Justice Department only turned over some of the records, leaving out audio of Hur’s interview with the president.
If efforts to cite Garland are successful, he will become the third attorney general to be held in contempt of Congress. But it is unlikely that the Justice Department — which Garland oversees — would prosecute him. The White House’s decision to exert executive privilege over the audio recording, shielding it from Congress, would make it exceedingly difficult to make a criminal case against Garland.
The White House has repeatedly slammed Republicans’ motives for pursuing contempt and dismissed their efforts to obtain the audio as purely political.
Garland has defended the Justice Department, saying officials have gone to extraordinary lengths to provide information to the committees about Special Counsel Hur’s investigation, including a transcript of Biden’s interview with him.
“There have been a series of unprecedented and frankly unfounded attacks on the Justice Department,” Garland said in a press conference last month. “This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files is just most recent.”
On the last day to comply with the Republicans’ subpoena for the audio, the White House blocked the release by invoking executive privilege. It said that Republicans in Congress only wanted the recordings “to chop them up” and use them for political purposes.
Executive privilege gives presidents the right to keep information from the courts, Congress and the public to protect the confidentiality of decision-making, though it can be challenged in court.
Administrations of both political parties have long held the position that officials who assert a president’s claim of executive privilege can’t be prosecuted for contempt of Congress, a Justice Department official told Republicans last month. Assistant Attorney General Carlos Felipe Uriarte cited a committee’s decision in 2008 to back down from a contempt effort after President George W. Bush asserted executive privilege to keep Congress from getting records involving Vice President Dick Cheney.
The last time an attorney general was held in contempt was in 2019. That was when the Democratically controlled House voted to make then-Attorney General Bill Barr the second sitting Cabinet member to be held in contempt of Congress for refusing to turn over documents related to a special counsel investigation into former President Donald Trump.
Years before that, then-Attorney General Eric Holder was held in contempt related to the gun-running operation known as Operation Fast and Furious. In each of those instances, the Justice Department took no action against the attorney general.
The special counsel in Biden’s case, Hur, spent a year investigating the president’s improper retention of classified documents, from his time as a senator and as vice president. The result was a 345-page report that questioned Biden’s age and mental competence but recommended no criminal charges for the 81-year-old. Hur said he found insufficient evidence to successfully prosecute a case in court.
In March, Hur stood by the assessment in testimony before the Judiciary Committee, where he was grilled for more than four hours by both Democratic and Republican lawmakers.
His defense did not satisfy Republicans, who insist that there is a politically motivated double standard at the Justice Department, which is prosecuting former President Trump over his retention of classified documents at his Florida club after he left the White House.
But there are major differences between the two probes. Biden’s team returned the documents after they were discovered, and the president cooperated with the investigation by voluntarily sitting for an interview and consenting to searches of his homes.
Trump, by contrast, is accused of enlisting the help of aides and lawyers to conceal the documents from the government and of seeking to have potentially incriminating evidence destroyed.
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