Two House committees – Judiciary and Oversight – voted along party lines Thursday, May 16, to hold US Attorney General Merrick Garland in contempt of Congress. His offense? Refusing to submit to a congressional subpoena for audio recordings of Special Counsel Robert Hur’s interviews from the investigation into President Joe Biden’s handling of classified documents.
While the full House must still vote before Garland is officially “in contempt,” the Republican majority in the lower chamber makes the outcome all but a foregone conclusion. It likely doesn’t matter, however, as Biden invoked executive privilege over the recordings, validating Garland’s refusal to comply with the subpoena. Can he still be in contempt of Congress? Absolutely – but nothing is likely to come of it.
A Get Out of Jail Free Card for Garland
What exactly is contempt of Congress, and what consequences might Merrick Garland face? Well, the short answer in this case is not much – and probably nothing. According to the Congressional Research Service, criminal contempt of Congress is a process by which the House or Senate can try to hold a witness accountable for failing to comply with a committee subpoena. Congress criminalized such refusal to cooperate back in 1857.
However, a vote to hold someone in contempt doesn’t directly result in any real consequences. Rather, once someone is officially in contempt, a federal prosecutor must then prosecute. If found guilty, the defendant could face a fine of up to $100,000 and imprisonment “for not less than one month nor more than twelve months.”
That’s a lot of potential liability for most people – but not for AG Merrick Garland. He has a presidential get out of jail free card. Assuming the full House votes to hold the attorney general in contempt – and it likely will, given the party-line vote in each committee and the Republican majority in the chamber – it then falls to US Attorney Matthew Graves to decide whether to file federal criminal charges. Is that possible? Of course, but it’s far from probable.
Though Garland is likely to be held in contempt, it is for withholding evidence that his boss – the president of the United States – authorized him to withhold by claiming executive privilege.
“Because of the president’s longstanding commitment to protecting the integrity, effectiveness, and independence of the Department of Justice and its law enforcement investigations, he has decided to assert executive privilege over the recordings,” Edward Siskel, counsel to the president, wrote in a letter to Reps. Jim Jordan (R-OH) and James Comer (R-KY), chairmen of the Judiciary Committee and Oversight Committee, respectively.
The chances that the Biden administration will turn around and charge its own attorney general for obeying presidential orders are slim to none. In short, House Republicans can hold Garland as contemptible as they like, but it will amount to nothing.
What Could It Hurt? Depends on Who You Ask
Special counsel Robert Hur’s report is already a matter of public information – as are the text transcripts of the interviews. What could it hurt to grant Congress the option of reviewing the audio recordings as well? All factual information that might “jeopardize future sensitive operations,” as Garland put it, is already out there, available to anyone savvy enough to work an internet search engine.
So, what harm could releasing the audio actually do? well, despite DOJ claims that the recordings themselves might somehow reveal more of the law enforcement process and jeopardize future investigations than the verbatim text transcripts that are already available, there is another reason Democrats don’t want these recordings to be made public.
“The absence of a legitimate need for the audio recordings lays bare your likely goal,” Siskel wrote in his letter to the Republican House leaders, “to chop them up, distort them, and use them for partisan political purposes.” Siskel refused to adequately rebut the legitimacy of the stated reasons for the request – that the audio would allow Congress and the American people to hear the tone of voice and any verbal pauses not revealed by the transcripts. In doing so, he perhaps reveals the Biden campaign’s greatest fear in all this; that the American people might – for any reason, legitimate or not – see the president as a feeble old man who is unfit to lead.
The Republican response doesn’t exactly refute this, though it does present it in a much less nefarious light. “The American people will not be able to hear why prosecutors felt the President of the United States was, in special counsel Robert Hur’s own words, an ‘elderly man with a poor memory,’ and thus shouldn’t be charged,” House Speaker Mike Johnson (R-LA) said during a press conference. After what many contend was a presidency full of gaffes, blunders, and more switchbacks than an old backcountry mountain road, the last thing Biden needs going into an election against Donald Trump is more evidence of his cognitive decline.
