The Department of Justice (DOJ) announced on Friday that Attorney General Merrick Garland did not commit any crime by not complying with House Republicans’ subpoena for audio recordings of President Biden’s conversation with special counsel Robert Hur.
This decision aligns with a memo from the DOJ’s Office of Legal Counsel, which asserted that Biden’s executive privilege claim over the recordings protected Garland from prosecution. This memo emerged publicly just before almost all House Republicans, except one, voted to hold Garland in contempt of Congress, aiming to initiate prosecution against him.
Resolutions to hold someone in contempt of Congress serve as referrals to the Justice Department, which then decides whether there is a basis for criminal charges. In this instance, the DOJ firmly rejected the request in a detailed three-page letter.
The DOJ has historically refused to prosecute attorneys general or other officials for not providing materials to Congress, regardless of the administration in power. This was reiterated in a letter to House Speaker Mike Johnson (R-La.).
“Following this long-standing position and uniform practice, the Department has concluded that Attorney General Garland’s responses to the Committee subpoenas did not constitute a crime. Therefore, the Department will not present the congressional contempt citation to a grand jury or take any further action to prosecute the Attorney General,” wrote Carlos Uriarte, the DOJ’s head of legislative affairs.
House Republicans already possess the transcript of the conversation and sought to link the tapes to their impeachment inquiry. However, the transcript shows that no critical information related to their investigation was discussed.
After the vote on Wednesday, Garland criticized Republicans for using contempt as a partisan tactic.
“It is profoundly disappointing that the House of Representatives has turned a serious congressional authority into a partisan weapon. Today’s vote ignores the constitutional separation of powers, the Justice Department’s need to protect its investigations, and the substantial information we have already provided to the Committees,” he stated.
This refusal may prompt further action from House Republicans. Rep. Anna Paulina Luna (R-Fla.) announced plans to file a motion to pursue an inherent contempt resolution, which would authorize the House sergeant at arms to compel Garland to comply with the subpoenas.
“It hasn’t been done since the early 1900s and was a common practice for when individuals blatantly disregarded the authority of the House of Representatives. We hope that Garland and the DOJ do the right thing,” Luna told The Hill before the vote.
On Friday, the DOJ emphasized the numerous documents already provided in response to the subpoena, including the transcript and two classified documents. They noted that Hur had testified extensively about his investigation.
Leading up to the vote, Republicans argued that Biden’s release of the transcript undermined his claim of executive privilege over the audio recordings.
“The president waived executive privilege on these recordings by releasing a transcript of the entire interview to the public,” stated James Comer (R-Ky.) during a House Rules Committee meeting on Tuesday.
However, the DOJ’s Office of Legal Counsel, in a 57-page memo, dismissed this argument, stating that the committees’ need for the recordings did not outweigh the privilege claim based on separation of powers concerns.
“The audio recordings will not reveal any additional information relevant to the committees’ stated needs that is not already available in the transcripts,” the memo stated.
Garland argued that releasing the documents could hinder law enforcement’s ability to gain cooperation from individuals reluctant to have their conversations shared with lawmakers. Additionally, in a separate case, the DOJ argued that the audio files could be manipulated.
Republicans countered that the audio recordings would provide more insight into Hur’s comments about Biden’s memory and assist voters in evaluating the president’s mental fitness. Some GOP members also questioned the transcript’s accuracy, but the DOJ certified in litigation with outside groups that the transcript was an accurate, word-for-word representation of the conversation, with minor edits for clarity.