House GOP grapples with Luna’s push to detain Garland

House Republicans are trying to wrap their heads around the idea of directing the sergeant-at-arms to take Attorney General Merrick Garland into custody, as Rep. Anna Paulina Luna (R-Fla.) says she will force a vote on holding him in “inherent contempt” of Congress.

The promise from Luna is yet another headache for GOP leaders, who are planning to file a lawsuit in D.C. next week to enforce their subpoena of Garland.

Republicans voted to hold Garland in contempt of Congress earlier this month over his refusal to provide audio recordings from President Biden’s October interview with special counsel Robert Hur about his handling of classified documents. The Justice Department provided a written transcript of the conversation, and Biden has claimed executive privilege over the tapes.

The dramatic notion of the sergeant-at-arms detaining the attorney general has caught some members off guard, and raised questions about its prudence and feasibility.

House Oversight Committee Chair James Comer (R-Ky.) said on Fox Business that while he will vote for the measure, he does not think it’s necessary.

“I don’t think anyone understands how it’s going to work. The last time it was used, members of Congress rode horses to this building where I am right now,” Comer said.

It is not clear that Luna’s resolution would be successful in the slim GOP majority. At least two moderate GOP members, Reps. John Duarte (R-Calif.) and Dave Joyce (R-Ohio), say they will not support the inherent contempt measure. 

Duarte backed the traditional contempt resolution for Garland earlier this month, but said he would not do so for Luna’s inherent contempt push.

“I don’t think we should go forward with it,” Duarte told The Hill, criticizing the use of privileged motions and adding, “I don’t think they are the best way to operate.”

“I just cannot [be] supportive of individual members to escalate an inherent contempt effort to go then arrest him at the Department of Justice and bring him back to confinement,” Duarte said of Garland. “I mean this is, this is an extraordinary measure, and I don’t think it’s something we should do lightly.” 

Joyce — the only Republican to oppose holding Garland in contempt of Congress earlier this month — signaled that he would also vote against Luna’s push for inherent contempt.

“I think one could deduce from my first vote where I’d be on the second,” he told The Hill.

Republicans who support the move, though, see it as a way to exert lost congressional power. 

“Congress, performing its oversight duties, has been ignored … Congress and the American people we represent have been disrespected. So we are here to say ‘no more,’” Rep. Dan Crenshaw (R-Texas) said in a press conference supporting Luna’s resolution Wednesday. “I understand that this sounds extreme. It sounds extreme to put the AG in handcuffs and drag him here.”

Luna has yet to raise the question of privilege for her resolution, which would require GOP leaders to act on the matter within two legislative days. That can include voting on the substance of the measure, or tabling the matter or sending it back to committee, effectively killing it.  On Wednesday, Luna said she was waiting until GOP attendance was high enough that it would succeed on the House floor.

Speaker Mike Johnson (R-La.) engaged in multiple discussions with Luna on the House floor this week.

“We are going to file suit next week against the Department of Justice to enforce that subpoena will go to district court here in D.C.,” Johnson said in a press conference Wednesday. “In the meantime, there are a lot of different ideas and discussions and people are brainstorming on how might we acquire access to those tapes.”

While Congress has frequently held officials in contempt, it’s rarely used the blunter tool that allows for the arrest and detention by the House sergeant-at-arms.

That’s in part because House rules offer little guidance on how to carry out the process — a factor further complicated by Garland’s protective FBI detail.

“It’s completely unclear how she would do it because she doesn’t put in a process in her resolution,” Rep. Ted Lieu (D-Calif.) said.

“It’s a totally ridiculous resolution. It would basically unleash a power with no constraints and no process.”

Luna’s resolution directs the Speaker to “issue a warrant commanding the Sergeant at Arms or the deputy of the Sergeant at Arms to take into custody the body of Attorney General Garland wherever found” and bring him to the House to answer their questions.

Democrats eyed reviving the tool during the Trump administration as then-Attorney General Bill Barr defied a subpoena. 

But the matter prompted Lieu to later sponsor his own bill to clarify the process, which currently states that Congress has the power to arrest the “recalcitrant witness” and must hold a trial, but spells out little else. 

“It’s a set of procedures for how you would use inherent contempt, which gives due process rights that every American has and honors those rights. That was the whole point of legislation. Rep. Luna’s resolution is just this random thing that has no process, that’s just basically ‘take an American and hold that person in custody.’ That’s totally ridiculous,” Lieu told The Hill.

Rep. Eric Swalwell (D-Calif.) dismissed the idea as “Anna Paulina Lunacy” during another hearing.

During a Wednesday press conference, Luna noted that those detained through inherent contempt have not always been held in the “guard rooms” that have been used to hold prisoners.

“The last individual that was detained for basically violating Congress’s authorities was actually put up at a very nice hotel,” Luna said. 

Inherent contempt hasn’t been used since 1934, when William MacCracken, the first-ever aeronautics regulator, posted up at the Senate sergeant-at-arms’s house for the weekend, refusing to leave. After a judge would later find his arrest to be legal, MacCracken spent one night in the Willard Hotel.

For Luna’s part, she doesn’t think any formal arrest will be necessary.

“Ideally, what would happen is this passes, Garland presents himself and we can conduct a hearing here in the House of Representatives. I don’t care if they want to put, whatever, [Rep. Jim] Jordan in charge of it, but allow us to be able to conduct the investigation,” Luna told The Hill. 

“Every other American — if you’re subpoenaed, if I’m subpoenaed — every other American has to do this, but he’s been given special privilege.”

And despite some bristling from GOP members, several moderates are supportive of Luna’s idea, seeing it as a way to further highlight their desire to obtain the audio of Biden’s interview with Hur. 

Rep. Marc Molinaro (N.Y.) — one of 17 House Republicans who represent a district Biden won in 2020 — said he is “hopeful” that the Judiciary Committee’s lawsuit to secure the recording will be successful. But if it is not, he contended, “escalation is necessary.”

Rep. Jamie Raskin (D-Md.), who signed onto Lieu’s bill, defended Congress’s power to use inherent contempt, but criticized Republicans for pressing ahead.

He argued that Garland turned over a transcript of Biden’s conversation with Hur and is immune from prosecution for holding back the audio tapes since Biden claimed executive privilege over the materials.

“It’s a rusty tool. You know, it hasn’t been used in a century pretty much. So we have to figure out how to do it,” he said.

“But bad cases make bad law, and this is a terrible case to try to revive inherent contempt because there’s simply no contempt on the part of the defendant who’s responding to the charge.”