Justice Department Says It Won't Prosecute Merrick Garland For Contempt Of Congress

WASHINGTON ― The Justice Department said Friday it wouldn’t prosecute U.S. Attorney General Merrick Garland for not giving lawmakers audio of President Joe Biden’s interview with a special counsel.

House Republicans approved a contempt of Congress citation against Garland for allegedly defying their subpoena, but the department said in a letter to House Speaker Mike Johnson (R-La.) on Friday that Garland’s response to the subpoena “did not constitute a crime.”

Garland had given Republicans a transcript of Biden’s interview with former special counsel Robert Hur, as well as other documents Republicans asked for, but he said handing over the audio would hurt law enforcement by making people less likely to cooperate with future investigations.

Republicans said they needed the recording to verify the transcript, which some lawmakers dubiously claimed may have been edited in order to protect Biden from criminal liability.

Garland appointed Hur last year to investigate Biden’s retention of classified documents after he left the vice presidency in 2017, essentially setting up a parallel probe of the investigation into former president Donald Trump’s hoarding of documents after leaving the White House in 2021.

Hur determined in a report this year that he wouldn’t have a strong case against Biden, partly because of legal arguments the president could make and partly because he would come off to a jury as a “elderly man with a poor memory.”

The transcript showed aides helping Biden place certain life events in chronological order; the White House has said Republicans only want the audio for attack ads. If someone edited the transcript to protect Biden from questions about his memory, they didn’t do a very good job.

(Trump, for his part, did not cooperate with investigators like Biden did and is accused of obstruction of justice on top of charges for willful retention of national defense information.)

The refusal by the Justice Department to prosecute its own chief executive did not come as a surprise, since Biden had asserted executive privilege over the Hur recording to shield it from public dissemination.

“The longstanding position of the Department is that we will not prosecute an official for contempt of Congress for declining to provide subpoenaed information subject to a presidential assertion of executive privilege,” Assistant Attorney General Carlos Uriarte said in his letter to Speaker Johnson, citing several past refusals to prosecute executive branch officials for not giving Congress material covered by executive privilege.

Republicans demanded the Hur material as part of their impeachment inquiry against Biden, which has mostly focused on whether he participated in his son’s overseas business deals. That investigation appears unlikely to result in an impeachment vote, but this week’s contempt vote against Garland may be something of a consolation to Republicans who want high-profile conflict with the Biden administration.

On Thursday, a day after the contempt vote, the National Republican Congressional Committee published a digital advertisement saying Democrats who voted against the contempt resolution were trying to protect Biden from voter concerns about his age ― not from a doctored transcript.

“Extreme House Democrats voted to block Americans from hearing secret audio files showing the truth about Biden’s mental fitness,” the ad’s narrator says.