I know, I know. With all that has been going on in the political world over the last couple of weeks, a battle over congressional contempt seems like small potatoes. But I will try to convince you in this post that it is more important than at first it might appear.
In my last two posts I set forth legal background on the congressional contempt statute and discussed the contempt conviction of Steve Bannon. Today we will cover another recent contempt proceeding involving Attorney General Merrick Garland, who is refusing to comply with subpoenas issued by two House committees (Judiciary and Oversight & Accountability) for the audio files of Special Counsel Robert Hur’s interview of President Joe Biden. Garland has asserted that the audio files are protected by executive privilege, in accordance with an OLC opinion (not publicly available) and a formal assertion of privilege by President Biden. The committees reported this contempt to the House (see here for the Judiciary report and here for the Oversight & Accountability report), which certified the contempt pursuant to 2 U.S.C. §194. A few days ago the committees filed a civil suit to enforce the subpoenas, and there is also an inherent contempt resolution which has been introduced regarding the matter.
The dispute relates to one hot topic of political controversy due to the nature of the underlying materials that the House committees seek. They want the audio files of the Biden interview, despite having the transcript, because they believe the actual recording of Biden’s answers will provide additional information relevant to their inquiries, including “whether sufficient grounds exist to draft articles of impeachment against President Biden for consideration by the full House of Representatives and to determine if legislation is needed to codify procedures governing the Department’s special counsel investigations or to strengthen the Department’s commitment to impartial justice.” Resolution Recommending that the House of Representatives Find United States Attorney General Merrick B. Garland in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Committee on the Judiciary, H.R. Rep. 118-527, at 2 (2024) (“Garland Contempt Report”). Notwithstanding the somewhat vague explanations as to exactly why the committees need this information, it is apparent that they want to see whether the audio files shed light on the state of Biden’s mental faculties and, more specifically, whether the recording substantiates the special counsel’s finding that Biden is a “doddering old fool” (ok, the actual quote is a “sympathetic, well-meaning elderly man with a poor memory,” but I think my paraphrase is close enough for government work).
The Biden administration claims that the audio files are protected by the so-called law enforcement component of executive privilege. You may recall that my first post in this series discussed the 1984 OLC opinion in which the EPA administrator refused to comply with a congressional subpoena on the ground the doctrine of executive privilege encompasses open law enforcement files. The executive branch, however, has continued to expand the scope of this supposed law enforcement component of executive privilege. In a 2000 letter from the Justice Department to the House Rules Committee, for example, the department asserted that the privilege would extend to internal deliberative documents such as declination memoranda even in closed cases. And in cases like that of the Biden audio files, which involve neither open law enforcement files nor deliberative information, the department has nonetheless asserted executive privilege applies because disclosure would supposedly “have a chilling effect on high-profile witnesses in future criminal investigations.” See Garland Contempt Report at 28 (minority views).
Congress has never accepted the theory that executive privilege protects law enforcement files from congressional scrutiny, particularly with respect to closed matters. This theory, it argues, conflicts with the Supreme Court’s recognition of broad congressional power to oversee and legislate with respect to the Department of Justice. Thus, the Court has upheld the validity of a Senate resolution to inquire into malfeasance or negligence in the administration of the department, including prosecutorial decision-making:
It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.
This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as, in the judgment of Congress, are needed from year to year.
McGrain v. Daugherty, 273 U.S. 135, 177-78 (1927). Congress contends that its power to enact legislation and conduct oversight regarding the Department of Justice, including its prosecutorial functions, precludes any presumptive constitutional right to withhold information of this kind. See Mort Rosenberg, When Congress Comes Calling 81-82 (2017) (arguing that prosecutorial discretion is not a core presidential power that can justify a claim of executive privilege).
Congress has a strong argument here, or at least it did until last week, when the Supreme Court decided Trump v. United States (2024), in which, among other highly questionable pro-presidential statements, the majority referred to the president’s “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” One might hope that the lower courts will recognize the importance of allowing Congress access to information relating to the impeachment function since that is effectively one of the few checks on presidential power that remains. But I would not count on it.
This is not to say that a court would necessarily uphold the assertion of executive privilege here. The House committees are not challenging the decision to withhold the audio files primarily on the ground that executive privilege is wholly inapplicable. Instead, they focus on the fact the Biden administration has already released the transcript of the interview. This constituted a waiver of any executive privilege that may have existed, they argue. Furthermore, there is no legitimate confidentiality interest that can justify the withholding of the audio files under these circumstances, where the committees are attempting to discern whether Biden’s responses to the special counsel’s questions were the product of a poor memory or declining mental condition, on the one hand, or reflect intentional evasiveness, on the other. Garland Contempt Report at 12. Merely reading the transcript is inadequate because “[w]hile the text of the Department-created transcripts purport to reflect the words uttered during these interviews, they do not reflect important verbal context, such as tone or tenor, or nonverbal context, such as pauses or pace of delivery.” Id.
The rejoinders to these arguments from Garland and committee Democrats are essentially three-fold. First, they argue that the president has properly invoked executive privilege, which can be overcome only with a sufficient showing of need. Second, they argue that there is no need here because the transcripts are adequate to provide the committee with the information it needs and there is no reason for the committees to be scrutinizing the president’s mental capacity in any event. Third, they contend that the justifications offered to obtain the audio files are pretextual and that committee Republicans only want them to embarrass Biden before the election.
Andrew McCarthy finds these “rationales for stonewalling” to be “laughable.” He calls the refusal to produce the audio files “blatant obstruction,” and he argues that Congress’s institutional interest in obtaining relevant, non-privileged information “should transcend partisanship—i.e., if you are a member of Congress, you have a duty to defend Congress’s prerogatives, even if doing so may cause problems for a president of your own party.” He also points to “blind partisanship” by members of Congress as enabling the executive to take unreasonable positions, knowing that members of the president’s party in Congress will support him regardless.
McCarthy’s point regarding partisanship is well-taken, but he certainly has a selective way of applying this point. When it came to the Steve Bannon contempt, McCarthy’s accusation of “partisanship” was directed at the January 6 committee, including Liz Cheney, Adam Kinzinger, and by extension the 7 other Republicans who voted in favor of certifying the contempt. Since Bannon clearly had “relevant, non-privileged information,” and his claims of privilege were far more “laughable” than Garland’s, logical consistency would suggest that the “blind partisanship” charge would be most accurately leveled at House Judiciary Committee Chair Jim Jordan, who is leading the contempt effort against Garland and who also led the effort to oppose holding Bannon in contempt. See Liz Cheney, Oath and Honor: A Memoir and a Warning 227-29 (2023) (discussing Jordan’s testimony before the Rules Committee on the Bannon contempt resolution).
Interestingly, both McCarthy and the committee Democrats draw an analogy between the effort to obtain Trump tax returns during the 116th Congress and the effort to get the Biden interview audio files here. This strikes me as a fair analogy. I pointed out at the time that the argument for obtaining the tax returns was marginal (and required some suspension of disbelief to validate the asserted legislative need). As discussed below, the same is true of the effort to obtain the audio files here. The Democrats point out that Jordan was a vigorous defender of presidential privacy in the tax returns matter and has flipped 180 degrees now that he is investigating a Democratic president. See Garland Contempt Report at 39-40 (dissenting views). Of course, unmentioned is the fact that the Democrats have also switched positions in the opposite direction.
Unfortunately, pointing out that everybody is a hypocrite does not tell you much about which position is correct. Continue reading “Bannon, Garland and Contempt of Congress: Part III (The Garland Contempt)”