Merrick Garland’s Legal Dilemma

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The Republican-led House of Representatives is advancing this week with a contempt of Congress vote against Attorney General Merrick Garland.

This vote comes after Garland’s refusal to release audio recordings from special counsel Robert Hur’s October interview with the president. Hur’s investigation concluded that while President Joe Biden had “willfully retained and disclosed classified materials,” a criminal case could not be proven beyond a reasonable doubt to a jury. The report noted that the 81-year-old president would “present himself to a jury … as a sympathetic, well-meaning, elderly man with a poor memory.”

Following the release of the Hur report in February, House Republicans on the Judiciary and Oversight committees have demanded additional information, even issuing subpoenas to the Justice Department. The department has complied, providing thousands of pages of documentary evidence. Additionally, the Justice Department released the transcript of the special counsel’s two-day interview with Biden.

However, not satisfied with the transcript, Republicans have subpoenaed the full audio of the interview. Biden has invoked executive privilege over the recording, presenting a dilemma for the attorney general: respect the president’s decision to assert executive privilege or turn over the audio.

The House Republicans’ arguments notwithstanding, the contempt case against Garland is not a straightforward case of defying Congress. If Biden’s interpretation of executive privilege holds, Garland is both upholding the rule of law and maintaining a crucial separation between the branches of government.

Why do Republicans insist on obtaining the audio files? What information could the audio contain that’s not in the transcript?

The obvious answer is that supporters of former President Donald Trump in Congress want the audio tapes to argue that Biden is unfit for office. Essentially, Republicans seek the audio recording for use in campaign ads leading up to the fall elections.

My former Republican colleagues in the House of Representatives swiftly defend Trump’s use of executive privilege and often support broad authority to shield him from congressional oversight. In contrast, they apply a narrow definition of executive privilege to Biden.

The House Republicans’ decision to pursue contempt charges against the attorney general highlights their misplaced priorities. This session, Republicans have filed or threatened more than a dozen articles of impeachment, targeting individuals ranging from Biden to Secretary of Homeland Security Alejandro Mayorkas and other figures in the Biden administration.

This impeachment theater is effective for fundraising and social media but undermines the true purpose of oversight entrusted to Republicans. House Republicans accuse the attorney general of politicizing the Department of Justice, yet, in their effort to embarrass Biden, they are themselves politicizing their oversight duties.

The clear path for House Republicans is to file a motion in federal court challenging the president’s use of executive privilege and seek a court order to compel the attorney general to produce the audio recording.

Given the uncertainty about Biden’s authority to assert executive privilege over the audio tapes, a court ruling is essential. If the court rules against the president’s assertion of executive privilege, the Justice Department would have to produce the audio tapes. Conversely, a court ruling affirming the president’s executive privilege would validate Biden’s stance and stop the House Republicans’ contempt of Congress charge against the attorney general.

In these highly partisan times, the courts are the appropriate venue for settling this issue. Instead of adhering to judicial precedent, the House of Representatives is opting for a politically charged path. The Republicans’ choice to bypass the courts with a contempt of Congress charge will further diminish public confidence in America’s justice system.

The contempt of Congress vote against the attorney general is part of a recurring pattern in this Congress. Impeachment theater and unwarranted contempt of Congress votes may perform well on conservative TV and social media, but they are inadequate substitutes for genuine governance.

Ken Buck
Ken Buck
Ken Buck is a former member of Congress who represented the 4th Congressional District of Colorado from 2015 to 2024. He served on the House Judiciary Committee.

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