The Justice Department (DOJ) issued a determination Friday that Attorney General Merrick Garland committed no crime in failing to meet the demands of House Republicans who subpoenaed audio of President Biden’s conversation with special counsel Robert Hur.
The determination is in line with a memo from the DOJ’s Office of Legal Counsel that stated Biden’s claim of executive privilege over the tapes protected Garland from prosecution. That memo publicly surfaced hours before all but one House Republican approved a resolution to hold Garland in contempt of Congress, an effort to kick off prosecution of the attorney general.
However, such resolutions act as a referral to the Justice Department, which must then determine whether grounds exist for criminal charges — in this case with the DOJ strongly rebuffing the request in a three-page letter.
The DOJ under administrations of both parties has repeatedly declined to prosecute several attorneys general or other officials who have not turned materials over to Congress, the department noted in a letter to House Speaker Mike Johnson (R-La.).
“Consistent with this longstanding position and uniform practice, the Department has determined that the responses by Attorney General Garland to the subpoenas issued by the Committees did not constitute a crime, and accordingly the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General,” Carlos Uriarte, the DOJ’s head of legislative affairs, wrote in the letter.
Republicans already have the transcript of the conversation, and while they’d publicly sought to connect the tapes to their impeachment probe, the transcript makes clear no items they marked as important to their investigation were discussed.
Garland after Wednesday’s vote had accused Republicans of using contempt as a partisan tool.
“It is deeply disappointing that this House of Representatives has turned a serious congressional authority into a partisan weapon. Today’s vote disregards the constitutional separation of powers, the Justice Department’s need to protect its investigations, and the substantial amount of information we have provided to the Committees,” he said.
The refusal is likely to tee up additional action from House Republicans.
Rep. Anna Paulina Luna (R-Fla.) said she would file a privileged motion to take up a previously filed inherent contempt resolution — legislation that if approved would greenlight the House sergeant at arms to bring Garland to the House to force him to turn over subpoenaed items.
“It hasn’t been done since the early 1900s and was actually a pretty common practice for when people blatantly ignored and disrespected the authority of the House [of] Representatives. So we hope that Garland does the right thing and we hope that the DOJ does the right thing,” she told The Hill ahead of Wednesday’s vote.
The DOJ on Friday stressed the numerous documents turned over in response to the subpoena, including the transcript and two classified documents. They noted Hur also testified for hours about his investigation.
Leading into the vote, Republicans suggested that because Biden had shared the transcript, he had little ground for holding back the audio.
“The president has waived any executive privilege over these audio recordings by releasing a transcript of the entire interview to the public,” House Oversight and Accountability Chair James Comer (R-Ky.) said during a House Rules Committee meeting Tuesday.
But the 57-page memo from the department’s Office of Legal Counsel rejected that argument.
“Because the committees have the transcripts of the special counsel’s interviews, the needs the committees have articulated for the recordings are plainly insufficient to overcome a privilege claim grounded in these important separation of powers concerns,” according to the memo.
“The audio recording will not reveal any information relevant to the committees’ stated needs that is not available in the transcripts.”
Garland had cited Justice Department concerns in refusing to turn over the documents, arguing doing so could chill law enforcement’s ability to gain cooperation from those who may be hesitant to have their conversations shared with lawmakers. And in a separate case from outside groups seeking the audio, the Justice Department argued the files could be manipulated.
Republicans in turn had argued the audio files – much more than the transcripts themselves – would shed light on Hur’s comments about Biden’s memory and could help voters assess the president’s mental acuity.
Some GOP members have also raised the specter that the transcript could be inaccurate, but the Justice Department refuted that allegation in its litigation with outside groups, certifying that the transcript is a word-for-word match to the conversation, with “ums” and filler words removed as well as repeated words such as “I.”
Updated at 3:55 p.m. EDT