House Republicans Hold AG Garland in Contempt

Political grandstanding over dubious claims of privilege.

NPR (“House votes to hold Attorney General Garland in contempt“):

The Republican-led House of Representatives voted 216 to 207 to hold Attorney General Merrick Garland in contempt of Congress, escalating a tug-of-war over audiotapes of President Biden’s interview with a special prosecutor.

That federal criminal investigation ended this year with no charges against Biden for mishandling classified information, in part because special counsel Robert Hur concluded a jury would likely view the president as a “sympathetic, well-meaning elderly man with a poor memory.”

Garland becomes the third Attorney General to face reprimand by the House for defying a congressional subpoena. But the consequences are likely to end there, since President Biden has asserted executive privilege over the tapes, giving Garland legal protection from any further investigation.

[…]

House Republicans argued Tuesday that the Justice Department waived privilege over withholding the tapes once it gave the committees the transcripts of the interviews with Biden.

The attorney general has said he engaged in extraordinary accommodation with lawmakers. Special counsel Hur provided five hours of congressional testimony about his findings. And the Justice Department turned over written transcripts of Biden’s interview, as well as correspondence with lawyers for Biden and the White House.

Garland sought to cast the contempt proceedings as part of a series of attacks against the Justice Department and its career employees by partisans intent on making political points.

“Disagreements about politics are good for our democracy,” Garland wrote in an opinion piece this week. “They are normal. But using conspiracy theories, falsehoods, violence and threats of violence to affect political outcomes is not normal. The short-term political benefits of those tactics will never make up for the long-term cost to our country.”

Rep. Jerry Nadler of New York, the top Democrat on the House Judiciary Committee, furthered that argument Tuesday in a hearing on the contempt measure.

“This isn’t really about a policy disagreement with the DOJ. This is about feeding the MAGA base after 18 months of investigation that have produced failure after failure,” Nadler said.

Nadler also maintained that the audiotapes of the president could be easily manipulated by House Republicans, pointing to a case of a witness who appeared before the panel last year that resulted in threats.

[…]

But leaders of the House Oversight and Judiciary committees said they had legitimate reasons to demand the tapes of Biden’s interview, reasoning that it could help advance a stalled impeachment probe against Biden and assess the need for new legislation to protect sensitive or classified materials.

The tapes also would help make their case that Biden, 81, is losing his faculties, a pillar of the Republican case against Biden in the 2024 presidential election.

“If the attorney general wants to defy Congress and not produce the audio recordings, he will face consequences for those actions,” House Oversight Committee Chairman James Comer, R-Ky., declared recently.

Biden’s decision to invoke executive privilege not only insulates his attorney general from a criminal contempt probe but also prevents the audio from appearing in campaign ads.

“Quite frankly, the White House has every reason to be concerned about the audio being released, because it could be chopped up and used in various ways in a political campaign in an election year to make the president look and sound bad,” George Mason University political scientist Mark Rozell told NPR.

I simultaneously think the House Republicans are grandstanding here and have a point. The whole point of a special counsel is to have someone conduct the investigation outside of the political control of the President. It makes no sense then that Biden’s conversation with Hur falls under executive privilege; he was acting in that instance as a suspect in a criminal probe over his conduct as a private citizen (unauthorized possession of classified documents from his time as Vice President after leaving office), not as Chief Executive.

Indeed, the Justice Department has already released a transcripton of the conversations to the Committee. This both seems to moot the idea that the conversation is privileged while raising questions as to the probitive value of the audio recordings.

Nadler and Rozell are doubtless right that unscrupulous Members might leak the tapes for use in campaign ads or to otherwise make Biden look bad. That would be a violation of the public trust. It is not, however, grounds for claiming Executive Priviledge.

The Office of Legal Counsel, whose job is to find a legal justification for the White House’s position, disagrees. In a 15 May memorandum, they argue:

Documents protected by executive privilege include materials contained in law enforcement files, over which the President “may invoke the privilege to protect the integrity and independence of criminal investigations and prosecutions.” […] Production of these recordings to the Committees would raise an unacceptable risk of undermining the Department’s ability to conduct similar high-profile criminal investigations in the future—in particular, investigations where the voluntary cooperation of White House officials is exceedingly important.

That seems silly. This isn’t a normal “law enforcement file” but rather an investigation the sitting President of the United States for potentially criminal conduct committed as a private citizen. Congress has a unique interest in that. Further, the investigation in question has concluded with the special counsel finding that charges were not warranted.

I do, however, agree with the OLC finding that the Committee has not provided a good reason why the audio recordings have probative value not satisfied by the transcripts. But that only matters if there’s a strong basis for the assertion of Executive Privilege in the first place.

That said, given that the President has invoked privilege, it’s rather bizarre to hold Garland in contempt for compliance. The Attorney General is not the decider as to what constitutes a valid privilege claim.

It’s a moot point, anyway. As a BBC report (“Merrick Garland held in contempt of US Congress“) notes,

But Wednesday’s vote functions as a partisan exercise given that a justice department prosecutor would almost certainly not pursue criminal charges against the head of their own agency.

Attorneys General William Barr and Eric Holder, who respectively served the preceding Republican and Democratic administrations, also were held in contempt of Congress along partisan lines. Neither faced criminal charges.

It’s noteworthy that the vote was exactly on party lines with one exception:

Moderate Ohio lawmaker David Joyce was the lone Republican to oppose the resolution, as did all 206 Democrats present for the vote.

“As a former prosecutor, I cannot in good conscience support a resolution that would further politicize our judicial system to score political points,” he said in a statement.

It might be late for that but, yes.

FILED UNDER: Congress, US Politics, , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Gavin says:

    Another great look from the party that has vowed to make the DOJ 100% political if elected to the White House later this year.

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  2. Flat Earth Luddite says:

    Wait, you mean to say that one GOP Congressperson sided with Democrats? Lock him up!

    ETA, I suspect that he’ll face zero party support in his next reelection bid.

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  3. Kathy says:

    Nadler and Rozell are doubtless right that unscrupulous Members might leak the tapes for use in campaign ads or to otherwise make Biden look bad.

    That’s the only reason why the GQP wants the recordings.

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  4. Scott F. says:

    Production of these recordings to the Committees would raise an unacceptable risk of undermining the Department’s ability to conduct similar high-profile criminal investigations in the future—in particular, investigations where the voluntary cooperation of White House officials is exceedingly important.

    That seems silly.

    Really? You can’t imagine that giving the opposition “party” ammunition for their gaslighting is going to make voluntary cooperation of WH officials harder in the future?

    The Committee isn’t interested in the probative value. They have the transcripts already. Every time in the Hur interview Biden was slow to remember, got his facts wrong, or misspoke is in the written record. The problem for the Republicans on the Committee is that the transcripts don’t convey the feeble mind they’ve assured us is the true measure of Joe Biden, Doddering Old President. They need audio they can edit to accentuate Biden’s stutter and clumsy phrasing, which they will feed to Fox and Newsmax.

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  5. al Ameda says:

    The Republican-led House of Representatives voted 216 to 207 to hold Attorney General Merrick Garland in contempt of Congress

    I’m pretty sure that Merrick Garlnd has nothing but contempt for Congress.

    Republicans have succeeded in completely devaluing the meaning and importance of contempt citations, impeachment and ‘oversight investigations.’

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  6. Franklin says:

    Can’t Obama retroactively declassify these docs with his mind and put this whole thing behind us?

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  7. Flat Earth Luddite says:

    @Franklin:
    Strong in you the snark is, young Padawan. He he he, strong indeed.

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  8. inhumans99 says:

    Merrick Garland should offer this as a one time offer to anyone that wants in, he sets up a time where folks can listen to the audio played back at a slower than normal speed so the GOP reps can compare the words in the recording to those in the transcript to confirm nothing egregious was left out and the catch is that no audio/recording devices are allowed while listening to the recording.

    I am not kidding, perhaps he should make this offer. The GOP claims they want to make sure nothing important from the interview was left out of the transcript, but this way they do not get to fast forward to the bits they want to use in ads against President Biden, if anything was missed in the transcript they can take notes, and do what they will with their notes.

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  9. OzarkHillbilly says:

    I hold House Republicans in nothing but contempt, so I guess we’re even.

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  10. Ken_L says:

    he was acting in that instance as a suspect in a criminal probe

    “Suspect” is not a recognised term in FBI investigations. My understanding is that the president was not advised that he was either a subject or a target of the special counsel investigation. If he had been so advised, his response to Hur’s request for an interview may well have been to tell him to go pleasure himself.

    Given Trump Republicans’ blanket refusal to cooperate with the January 6 committee’s investigations, tiresome legalistic arguments about Garland’s refusal to comply with a subpoena from comic opera joke James Comer are the kind of “both sideserism” that so frustrates critics of American political discourse.

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  11. BTW, I don’t think that the audio would have been leaked. I think Comer would have played it in a public committee meeting.

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  12. Matt Bernius says:

    @Steven L. Taylor:
    100% that, which then puts it into the public domain.

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  13. James Joyner says:

    @Scott F.

    :You can’t imagine that giving the opposition “party” ammunition for their gaslighting is going to make voluntary cooperation of WH officials harder in the future?

    No, because this case is sui generis. Private Citizen Biden was in illegal possession of classified documents from his time as VP. There was an independent counsel investigation into that. He had every incentive to cooperate, and the transcript of the conversation was, rightly, released to the Congress and thus the public.

    The Committee isn’t interested in the probative value.

    Acknowledged in the OP. I just don’t think denying the opposition of ammunition is the purpose of Executive Privilege, which is to allow the President and his team to have unvarnished discussions about public policy. There is no Executive business at stake here; Biden was, rightly, the subject of an investigation into his conduct as a private citizen.

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  14. just nutha says:

    @James Joyner: How about going with Originalism then? Live audio is a relatively new development, so they can only have whatever’s been traditionally available. Problem solved!

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  15. Ken_L says:

    @just nutha: I’m surprised the interview was recorded at all. Until recently it was DOJ policy not to do so. Republicans whined for months that they could only get the interviewing agents’ notes of Hillary’s interview in the Great Email Scandal, because it was neither recorded nor transcribed. And that seemed a very sound policy to me; people asked to provide information in an investigation are much less likely to be completely forthcoming if they know every word is being recorded for posterity, for possible use against them in some future circumstances they can’t then anticipate.

    Once someone is informed they are the subject or target of an investigation the situation changes. They know to watch their words, and/or take the 5th. But that wasn’t Biden’s position.

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