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.
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Author: James Joyner
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