DOJ memo says Garland cannot be prosecuted for contempt over Biden-Hur audio

An internal Justice Department (DOJ) memo argued Attorney General Merrick Garland would be protected from prosecution for contempt of Congress given President Biden’s assertion of executive privilege over audio tapes Republicans have sought by subpoena.

The 57-page memo from the department’s Office of Legal Counsel (OLC), obtained by The Hill, lays out the case for Garland’s refusal to turn over the audio of Biden’s conversation with special counsel Robert Hur. The GOP already has a transcript of the interview.

The OLC, which operates as a legal adviser for the department, wrote that no administration official has been prosecuted for failing to comply with a subpoena when the president has claimed executive privilege.

“For nearly seven decades and across presidential administrations of both parties, the Executive Branch has taken the position that the criminal contempt of Congress statute … does not apply to Executive Branch officials who do not comply with a congressional subpoena based on a presidential assertion of executive privilege,” according to the memo.

“Consistent with this longstanding position, no U.S. Attorney has pursued criminal contempt charges against an Executive Branch official asserting the President’s claim of executive privilege.”

The memo lays out in detail the response that Congress is likely to get from the Justice Department if it chooses to recommend contempt for Garland in a Wednesday vote. Contempt of Congress largely serves as a recommendation to the Justice Department, which must then weigh whether to bring charges.

Republicans have fumed over Garland’s decision not to turn over the audio of Biden’s interview after the DOJ shared the transcript with the House Oversight and Judiciary committees.

“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 OLC refuted that argument in the memo.

“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 resisted sharing the transcripts, expressing concern it could chill the Justice Department’s ability to get cooperation with witnesses who would oppose having their conversations shared with Congress.

And in a separate legal battle from outside groups seeking the audio, the Justice Department argued sharing the audio created the risk for manipulation.

Congressional Democrats have also argued that the GOP wants the tapes for campaign commercials ahead of the election.

GOP members, meanwhile, contend that hearing Biden’s response to questions could illuminate Hur’s comments about the president’s memory and offer insights into his mental acuity.

“The memo reaffirms the executive branch’s long standing position that the criminal contempt of Congress statute does not apply, and could not constitutionally be applied, to executive branch officials who do not comply with a Congressional subpoena based on a presidential assertion of executive privilege,” the memo stated.

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