WASHINGTON — WASHINGTON (AP) — Merrick Garland risks becoming the third attorney general in US history to be prosecuted for contempt of Congress as Republicans move to punish the Justice Department for refusing to release audio related to President Joe Biden’s handling of classified documents.
Contempt is one of the messiest politically and, until recently, least used powers of American lawmakers. It is an instrument that the House of Representatives and the Senate can use to enforce compliance with a subpoena or to remove any obstacles to an ongoing investigation.
By passing a contempt resolution, the House would essentially recommend that Garland be prosecuted. And recent cases against allies of former President Donald Trump, including Steve Bannon and Peter Navarro, have proven that a contempt resolution is far from symbolic, laying the groundwork for a case that can sometimes hold up in court.
Here’s what you need to know about the contempt fight with Garland and the coming unrest.
The push to disparage Garland is just the latest attack by Republicans against the Justice Department.
Republican lawmakers — led by Reps. Jim Jordan and James Comer — continued to hold Garland in contempt for refusing to fully comply with a congressional subpoena issued as part of their investigation into the decision of Special Counsel Robert Hur not to accuse the Democratic president of crimes. Hur investigated Biden’s handling of classified documents.
The judiciary and House oversight & The accountability committee chairs had ordered the Justice Department to turn over the audio of Hur’s interviews with Biden in early April. But officials provided only some of the data, omitting the audio of the Biden interview and warning about the precedent that would be set for future investigations if the audio were provided.
On the final day, the White House must comply with the subpoena blocked the release of the audio by invoking executive privilege. It said Republicans in Congress only wanted the recordings to be “dismembered” and used for political purposes.
Executive privilege gives presidents the right to withhold information from the courts, Congress, and the public to protect the confidentiality of their decision-making, although this can be challenged in court.
Garland has defended the Justice Department, saying it has gone to extraordinary lengths to provide information to lawmakers.
“There has been a series of unprecedented and frankly baseless attacks on the Department of Justice,” Garland said at a news conference last month. “This request, this attempt to use contempt as a method to obtain our sensitive law enforcement records, is only the latest.”
Contempt of Congress is an enforcement mechanism for lawmakers that is codified in the legal code.
Under U.S. law, willful failure to comply with a valid congressional subpoena for documents or testimony is considered a criminal offense, according to a report by the nonpartisan Congressional Research Service.
But what amounts to contempt of Congress is often in dispute, meaning a contempt vote by the House of Representatives or Senate is only the beginning of a potential legal process. It is up to prosecutors to convert a contempt resolution into a case, and it is up to a jury to decide whether someone is guilty of a crime. Some contempt resolutions are never followed.
Contempt usually begins with the filing of a resolution in the appropriate committee. In Garland’s case: the judiciary and the oversight of the House of Representatives & Accountability committees raised reports of double contempt from the committees in successive party-line votes.
The next step is for the full House of Representatives to approve the report by majority vote. If all goes well, a referral will be sent to the Ministry of Justice. The Senate does not have to approve the resolution because each chamber of Congress has its own enforcement power.
The last time an attorney general was held in contempt was in 2019. That was when the Democratic-controlled House voted to make then-Attorney General Bill Barr the second sitting Cabinet member held in contempt of Congress for refusing to turn over documents that related to a special counsel investigation into Trump, a Republican.
Years earlier, during President Barack Obama’s administration, a Democrat, then-Attorney General Eric Holder, was held in contempt in connection with the gun-smuggling operation known as Operation Fast and Furious.
In each of these cases, the Justice Department took no action against the attorney general.
Contempt votes have become increasingly common in recent years, with serious consequences for defendants.
If the Justice Department decides to take up the contempt resolution and pursue a case, violations are punishable by a fine of up to $100,000 and imprisonment “for not less than one month nor more than twelve months,” according to the CRS .
Bannon, a longtime Trump ally and aide, was convicted in 2021 of contempt of Congress for refusing to comply with a House committee subpoena on Jan. 6 and was convicted by a jury in the summer of 2022 . recently ordered to report to prison before July 1 to serve a four-month prison sentence.
Navarro, a trade adviser to Trump, was also convicted of contempt of Congress after defying the Jan. 6 panel. He was sent to prison in March to begin serving his four-month sentence.
Even for those who escape prosecution, contempt of Congress’s resolution remains a mark on their record.