Justice Department says it won't prosecute Merrick Garland after House contempt vote

Washington — The Justice Department said Friday that it will not prosecute Attorney General Merrick Garland after the House voted to hold him in contempt of Congress for defying subpoenas for audio recordings of President Biden's interview with special counsel Robert Hur.

Carlos Uriarte, assistant attorney general, told House Speaker Mike Johnson in a letter that it is the Justice Department's longstanding policy not to bring contempt charges against an official who declined to turn over subpoenaed information subject to a president's assertion of executive privilege.

Mr. Biden invoked executive privilege over the audiotapes of his interviews with Hur, as well as an interview by his ghostwriter, and directed Garland not to release the materials sought by the House Judiciary and Oversight and Accountability Committees. Republicans on the panel had sought the recordings as part of their impeachment inquiry into the president.

"Consistent with this longstanding position and uniform practice, the Department has determined that the responses by Attorney General Garland to the subpoenas issued by the Committees did not constitute a crime, and accordingly the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General," Uriarte, who leads the Justice Department's Office of Legislative Affairs, wrote.

Johnson said Friday night that lawmakers would challenge the decision. 

"The House disagrees with the assertions in the letter from the Department of Justice, and as Speaker, I will be certifying the contempt reports to the U.S. Attorney for the District of Columbia," he said in a statement. "We will also move to enforce the subpoena of Attorney General Garland in federal court." 

The House on Wednesday voted 216 to 207 to hold Garland in contempt, escalating its fight over the recordings that stemmed from Hur's investigation into the president's handling of classified documents. The special counsel concluded that prosecuting Mr. Biden for his mishandling of the records was unwarranted, but found the president "willfully retained and disclosed" classified materials after his vice presidency. 

Hur's report, issued in February, critiqued the president's memory and said Mr. Biden could present himself as a "sympathetic, well-meaning, elderly man with a poor memory" to a jury. The special counsel said the president was confused about timelines of events and struggled to remember certain dates.

Mr. Biden's interview with Hur lasted five hours, and the president provided written answers to the special counsel's questions.

The Judiciary and Oversight Committees issued the subpoenas for audio recordings and other materials, including interview transcripts, after Hur issued his report. The Justice Department turned over a transcript of Hur's interview with Mr. Biden, as well as prosecutors' interview with his ghost writer, Mark Zwonitzer, but rejected the requests for the audio files in April.

Just before the two GOP-led committees were set to move forward with considering a contempt of Congress resolution against Garland, the Justice Department told the panel's leaders that Mr. Biden had asserted executive privilege over the recordings they were seeking at the department's recommendation.

Uriarte told Republican lawmakers then that the Justice Department had a "responsibility to safeguard the confidentiality of law enforcement files where disclosure would jeopardize future investigations," and said the attorney general had to protect the department from "improper political influence."

The pair of House committees advanced the contempt resolutions in separate votes last month, leading to the vote by the full House this week.

In his letter to Johnson explaining that the department would not take action against Garland, Uriarte said the Justice Department has maintained during administrations of both parties that the contempt of Congress statute couldn't be used against an executive branch official who asserts the president's claim of executive privilege.

He noted that in 2008, the department declined to prosecute two White House officials working for then-President George W. Bush, Harriet Miers and Joshua Bolten, after they were the subject of a contempt of Congress referral from the House, then led by Speaker Nancy Pelosi.

The department did the same in 2012 after then-President Barack Obama asserted executive privilege over documents sought by the Oversight Committee about the failed "Fast and Furious" gun-walking operation, Uriarte said. Then-Attorney General Eric Holder was held in contempt of Congress for refusing to comply with the panel's subpoena.

Most recently, in 2019, the Justice Department declined to prosecute then-Attorney General Bill Barr and Commerce Secretary Wilbur Ross after President Donald Trump asserted executive privilege over records about an effort to add a citizenship question to the 2020 Census. Both Cabinet officials were held in contempt of Congress.