Merrick Garland’s legal catch-22 – Washington Examiner

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

The vote is in response to Garland’s refusal to release the audio recordings from special counsel Robert Hur’s October interview with the president. The report issued at the conclusion of Hur’s investigation detailed his determination that, while President Joe Biden had “willfully retained and disclosed classified materials,” it would not be possible to prove a criminal case beyond a reasonable doubt to a jury. The 81-year-old president, according to the report, would “present himself to a jury … as a sympathetic, well-meaning, elderly man with a poor memory.” 

Since the Hur report was released in February, House Republicans on the Judiciary and Oversight committees have demanded more information, even issuing subpoenas to the Justice Department. The department has complied with those subpoenas, producing thousands of pages of documentary evidence in response to the two committees’ requests. Beyond that, the Justice Department also took the unprecedented step of releasing the transcript of the special counsel’s two-day interview with Biden. 

Not content with that transcript, however, the Republicans have subpoenaed the full audio of the interview. Biden has exerted executive privilege over the recording of the interview, creating a rule of law catch-22 for the attorney general: respect the president’s decision to assert executive privilege or turn over the audio. 

Despite what the House Republicans are arguing, the contempt case against Garland is not a clear case of defying Congress. If Biden’s interpretation of executive privilege is correct, not only is Garland upholding the rule of law, but he is also maintaining a vital delineation between the two branches of government. 

Why are Republicans so insistent on getting the audio files? What information would be gleaned from the audio interview that cannot be read in the transcript? 

The fairly obvious answer is that former President Donald Trump’s supporters in Congress want the audio tapes to drive home the point that Biden is unfit for office. In other words, the Republicans are looking for the audio recording for campaign ads going into the fall elections. 

My former Republican colleagues in the House of Representatives are quick to defend Trump’s use of executive privilege, and they have often supported broad authority to shield him from congressional oversight. But when it comes to Biden, these same Republicans want an extremely narrow definition of executive privilege to be applied. 

The House Republicans’ choice to move forward with contempt charges against the attorney general shows their misplaced priorities. Republicans in this session have filed, or threatened to file, more than a dozen articles of impeachment, with at least seven targets ranging from Biden to Secretary of Homeland Security Alejandro Mayorkas and others within the Biden administration. 

This impeachment theater is great for fundraising and social media, but it undermines the true work of oversight that Republicans have been charged with conducting. House Republicans continue to allege that the attorney general has politicized the Department of Justice. But House Republicans, in their relentless pursuit of embarrassing Biden, are themselves guilty of politicizing their oversight responsibilities. 

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

Precisely because there is uncertainty about Biden’s authority to assert executive privilege related to the audio tapes, a court’s ruling is necessary. Should the court find that the president has no right to assert executive privilege here, the Justice Department would be compelled to produce the audio tapes. 

On the other hand, a ruling by the federal courts that this instance falls within the president’s executive privilege would vindicate the president’s assertion of that privilege and also stop in its tracks the House Republicans’ contempt of Congress charge against the attorney general. 

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In these deeply partisan times, the courts are the proper venue for settling this question. Rather than follow judicial precedent, however, the House of Representatives has chosen a dangerous path for political reasons. The Republicans’ decision to sidestep the courts with a contempt of Congress charge will further erode public support for America’s justice system. 

The contempt of Congress vote against the attorney general fits an all-too-familiar pattern in this Congress. Impeachment theater and unfounded contempt of Congress votes work well for conservative TV and social media these days, but they are a poor substitute for actually governing. 

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.