House votes to hold Attorney General Merrick Garland in contempt over Biden audio

WASHINGTON — The Republican-controlled House on Wednesday narrowly voted to hold Attorney General Merrick Garland in contempt of Congress, a major escalation in the GOP’s war against a justice system the party has portrayed as unfairly targeting Donald Trump.

The vote was 216-207, with one Republican, Rep. David Joyce of Ohio, joining all Democrats in voting no. Seven Democrats and one Republican did not vote.

At issue was Garland’s failure to hand over audio of special counsel Robert Hur’s interview with President Joe Biden about his handling of classified documents. Republicans had demanded the audio after Hur declined to prosecute Biden, in part, because a jury might sympathize with him as an “elderly man with a poor memory.”

Democrats countered that the full transcript of the Biden interview has already been released to the public, and they sounded warnings that Republicans could manipulate the audio.

Despite the successful contempt vote, it’s largely a political exercise. Biden and his administration have asserted executive privilege in refusing to hand over the audio, all but eliminating the possibility that Garland would be prosecuted for ignoring the subpoenas. It’s also unheard of for Justice Department prosecutors to go after the head of their agency over a contempt issue.

Last month, both the House Judiciary and Oversight committees approved a report recommending that the House hold Garland in contempt for defying congressional subpoenas pertaining to the audio recording.

“This is not a complicated matter: The executive branch and its agencies, including the Department of Justice, are not above Congress’ right to oversee those agencies,” said Oversight Committee Chairman James Comer, R-Ky. “We, as members of the House of Representatives, have a duty to ensure congressional subpoenas are fully complied with by those who received them — people, companies and particularly the federal government.”

Rep. Jerry Nadler of New York, the top Democrat on the Judiciary Committee, said Republicans are targeting Garland after they failed to come up with enough evidence to impeach Biden.

“What do our Republican friends do when an investigation turns up short? Simply put, they engage in fantasy. That’s what they’re doing here today. Unable to come up with any wrongdoing by the president, they have now trained their sights on the attorney general,” Nadler said.

“This isn’t really about a policy disagreement with the DOJ. This is about feeding the MAGA base after 18 months of investigations that have produced failure after failure,” Nadler continued. “This contempt resolution will do very little other than smear the reputation of Merrick Garland, who will remain a good and decent public servant no matter what Republicans say about him today.”

The full House vote was always going to be a nail-biter given the GOP’s paper-thin majority. Even with Rep. Vince Fong, R-Calif., having been sworn in last week to fill the vacancy left by former Speaker Kevin McCarthy’s resignation, the Republicans can afford only two GOP defections on any vote. Just three GOP no votes would have killed the contempt effort with all members voting.

Joyce, the only Republican who voted against contempt, said in a statement that he couldn’t support the politicization of the justice system.

“As a former prosecutor, I cannot in good conscience support a resolution that would further politicize our judicial system to score political points,” Joyce said. “The American people expect Congress to work for them, solve policy problems, and prioritize good governance. Enough is enough.”

Speaker Mike Johnson, R-La., and his leadership team had expressed confidence about their whip count as they moved contempt to the floor. A handful of vulnerable Republicans, including Reps. Mike Lawler and Marc Molinaro of New York, said they would vote yes. Rep. Don Bacon, R-Neb., another top Democratic target in November, voiced reluctance about contempt but said he also would support it, arguing that the public deserves to hear the audio.

“I wish this could be settled without a contempt vote. But, the Attorney General owes the American people the audio recording regardless. When Special Prosecutor Hur showed that President Biden willfully kept classified info in his house and garage, then the comparisons with what DOJ is prosecuting President Trump on becomes more similar,” Bacon said in a statement. 

“Trump is being prosecuted, but Hur claims President Biden is too elderly with a bad memory to ever be taken to court. This is a very significant claim to make concerning our current President and the Democrat nominee,” Bacon added. “The citizens deserve to evaluate this for themselves.”

Garland isn’t the first attorney general to be held in contempt by a House controlled by the opposing party. The House voted to hold Trump’s attorney general, William Barr, in contempt of Congress in 2019, while it held Barack Obama’s AG, Eric Holder, in contempt in 2012 over his refusal to hand over documents related to the Fast and Furious probe.

Neither were prosecuted.

However, Judiciary Chairman Jim Jordan, R-Ohio, suggested House Republicans could sue to obtain the audio recording of Biden.

“We assume this is going to wind up in court,” Jordan said before Wednesday’s vote, adding: “We think our case is strong and we think that we will prevail.”

This week’s contempt vote is just the latest push by Republicans to portray a “two-tiered” justice system — one that criminally prosecutes and convicts Trump but lets Biden off the hook. House Republicans have railed against what they see as the “weaponization” of government and the justice system against Trump and his allies, even forming a special weaponization committee to investigate.

Meanwhile, on Tuesday, the Justice Department secured a conviction against the president’s son Hunter Biden on gun charges, and the Justice Department is leading prosecutions against two Democratic members of Congress on bribery charges.

Roughly a year ago, a federal grand jury indicted Trump on dozens of felony counts related to his handling of classified documents after his presidency.

But on Feb. 8, Hur announced that, following a monthslong probe, he would decline to prosecute Biden for his handling of classified documents. Hur said Biden’s practices of retaining and disclosing classified material after he was vice president “present serious risks to national security.” But he explained that he didn’t pursue charges because it would be difficult to get a jury to convict him — “by then a former president well into his eighties — of a serious felony that requires a mental state of willfulness.”

Garland testified before the House Judiciary Committee last week that he had provided the panel with the Hur report, allowed Hur to testify “for more than five hours” and “gone beyond precedent” to give the committee the transcripts of the Hur-Biden interview.

But Garland argued that turning over the audio recording would “chill cooperation with the department in future investigations” and “could influence witnesses’ answers if they thought the audio of their law enforcement interviews would be broadcast to Congress and the public.”

Garland went on to condemn the contempt push, calling it “only the most recent in a long line of attacks on the Justice Department’s work.”

“It comes alongside threats to defund particular department investigations, most recently the special counsel’s prosecution of the former president. It comes alongside false claims that a jury verdict in a state trial by a local district attorney was somehow controlled by the Justice Department,” Garland continued, referring to the New York hush money case against Trump. “That conspiracy theory is an attack on the judicial process itself.”