On June 12, Republican members of the US House of Representatives initiated a vote to determine that Attorney General Merrick Garland was in contempt of Congress because he refused to turn over audio files related to President Biden’s interview with special prosecutor Robert Hur. The House voted 216 in favor and 207 against, convicting Garland of contempt of Congress. However, this is unlikely to have any practical implications. The condemnation will be submitted to the Department of Justice, which will then decide whether to prosecute Garland.
The origins of this issue lie in the demands made by House Judiciary Committee Chairman Jim Jordan and Oversight and Reform Committee Chairman James Comer. They led House Republicans in requesting a contempt of Congress citation against Garland for his refusal to fully comply with the subpoenas issued by Congress.
Previously, Jordan and Comer had requested the Department of Justice to hand over the audio files of Biden’s interview with special prosecutor Hur by early April. However, DOJ officials only provided a transcript of the audio, not the complete recordings.
Garland defended the Department of Justice, stating that they had made every effort to provide information to lawmakers. The DOJ cautioned that releasing the full audio could set a damaging precedent for future investigations, potentially weakening the desire and ability of some witnesses to cooperate with the Department of Justice.
In February of this year, special prosecutor Hur released a 388-page report on his investigation into Biden’s handling of confidential documents. The report clarified Biden’s inappropriate behavior but ultimately decided not to press charges, citing difficulties in convincing a jury to convict him.
Republicans seized on this report to argue that Biden, due to his age, was unfit to serve as president. They accused the Department of Justice of applying double standards in selectively prosecuting individuals. Republicans hoped to obtain the audio files to verify the accuracy of the transcripts they possessed.
Democrats criticized Republicans for attempting to find any slight mispronunciations or stutters in the five-hour audio from the Biden-Hur interview to launch attacks against Biden.
In another legal battle related to the audio files, the DOJ submitted documents to the court affirming that the transcript accurately captured the conversation and did not include filler words or repetitions that appeared in the original audio.
On the deadline for the subpoena, the White House invoked executive privilege to prevent the release of the Hur-Biden audio. The White House stated that congressional Republicans would “chop up” the recordings and use them for political purposes.
The United States operates under the principle of the separation of powers, granting the president the authority of executive privilege to withhold information from the courts, Congress, and the public to protect the confidentiality of presidential decisions, despite potential challenges in court.
The House voted on Wednesday, June 12, to find Garland in contempt for not providing the requested information and recommended that the DOJ prosecute him. Garland criticized the House, stating, “The House has turned solemn Congressional authority into a partisan weapon.”
During the House debate, Committee Chairman Jordan mentioned the criminal indictment faced by former President Trump for mishandling classified information, contrasting it with Biden not facing similar charges. He argued that they had the right to access all evidence.
Committee Chairman Comer stated, “Attorney General Merrick Garland’s refusal to provide this evidence suggests the Department of Justice is clearly covering up President Biden’s misconduct.”
The only Republican member of the House to vote against the resolution, Dave Joyce, deemed it a politicized move, stating, “As a former prosecutor, I cannot in good conscience support a resolution that further politicizes our justice system for political gain. Americans expect Congress to serve them, address policy issues, and prioritize good governance. Enough.”
President Biden claimed executive privilege over the audio files. An internal memo from the DOJ obtained by the Congressional Hill before the vote indicated that Garland would be shielded from contempt of Congress charges due to Biden’s executive privilege over the audio files.
The 57-page memo from the DOJ’s Office of Legal Counsel detailed Garland’s reasons for refusing to hand over the audio of Biden’s conversation with special prosecutor Hur. It underscored that no government official faced criminal contempt charges for failing to comply with subpoenas when the president claimed executive privilege.
The memo stated, “For nearly 70 years, the consistent position of the executive branch has been that criminal contempt of Congress statutes… do not apply to executive branch officials who refrain from complying with congressional subpoenas based on presidential assertions of executive privilege.”
It outlined the steps the DOJ could take if Congress voted on June 12 to establish Garland’s contempt of Congress. The final determination of contempt of Congress requires a recommendation from Congress to the DOJ, which must then weigh whether to bring actual charges.
Contempt of Congress serves as a mechanism for congressional enforcement and checks on the executive branch, enshrined in US law. Intentionally failing to comply with subpoenas, attend hearings, provide documents, or testimony constitutes contempt of Congress, considered a misdemeanor.
However, what constitutes contempt of Congress is often controversial, signaling that a vote in the House or Senate is just the start of potential legal proceedings. Prosecution of individuals found in contempt by Congress is up to prosecutors and juries to determine guilt. Some cases of contempt of Congress decided by Congress have not led to further legal action.
The initial step in determining contempt of Congress typically begins with resolution from relevant congressional committees. Once the committees pass the resolution, voting by the full Congress is conducted, with each chamber having its own executive power and not requiring approval from the other. After Congress passes the resolution, the case is referred to the DOJ, which decides whether to prosecute.
In the case of Garland, the House Judiciary Committee and the Oversight and Reform Committee presented resolutions accusing Garland of contempt of Congress.
The House Rules Committee on June 11 paved the way for consideration of the resolution by the full House during a debate.
Subsequently, the full House voted on June 12. Following majority approval of the resolution, the next step involves transmitting the resolution to the DOJ, which will decide whether to take action.
The last time an Attorney General was deemed in contempt of Congress during their tenure was in 2019. Then-Attorney General of the Trump administration, William Barr, was cited for contempt by the House Judiciary Committee for refusing to provide Congress with unedited reports from special prosecutor Robert Mueller’s “Russia probe.”
Years earlier, during the Obama administration, then-Attorney General Eric Holder was cited for contempt by the House for failing to turn over certain documents related to the “Operation Fast and Furious,” a gun trafficking operation.
In these cases, the DOJ did not take any action against the respective Attorney Generals.
In recent years, votes on contempt of Congress have become more frequent in Congress, carrying real consequences for the defendants rather than symbolic meaning.
According to the non-partisan Congressional Research Service, punishments for violating a contempt of Congress resolution can include fines of up to $100,000 and imprisonment for “not less than one month but not more than twelve months” if the DOJ chooses to take action and pursue litigation.
Former President Trump’s allies, Steve Bannon and Peter Navarro, have been punished under this law.
Bannon, the former White House Chief Strategist in the Trump administration, was charged with contempt of Congress in 2021 for refusing to comply with subpoenas from the House January 6 Committee and was convicted by a jury in the summer of 2022. Bannon was ordered to start serving a four-month sentence before July 1 this year.
Navarro, a White House Trade Advisor in the Trump administration, was also found guilty of contempt of Congress and received a four-month sentence for refusing to comply with the January 6 Committee’s subpoena in January of this year. He began serving his sentence on March 19.
For those ultimately not prosecuted, a contempt of Congress resolution voted on by Congress remains a part of their personal records.