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.
The Merits of the Garland Information Dispute
As already noted, it is hard to deny that the existence of a law enforcement component of executive privilege is at least a plausible notion. (I suspect McCarthy would not disagree). This still leaves a lot of questions that must be answered before one could conclude the audio files are properly subject to a claim of qualified privilege: (1) what are the contours of the law enforcement component and does it require some sort of threshold showing that disclosure to Congress would impede the prosecutorial function; (2) does it apply to closed as well as open law enforcement matters; (3) does it apply to non-deliberative materials such as the audio files; (4) does it apply in impeachment investigations; and (5) did the disclosure of the transcript constitute a waiver of any claim of executive privilege. Collectively these issues underscore the weak and attenuated nature of the executive privilege claim here, but there is simply not enough precedent to say with confidence how any of them would be resolved. (A balanced analysis of the issues, which highlights the legal uncertainties, may be found in this CRS Legal Sidebar).
One difficulty for Congress in defending its legal position on such issues is that the members of the president’s party are often willing to embrace the executive perspective when they are in the minority. See, e.g,, Garland Contempt Report at 28 & 36 n.67 (dissenting views) (accepting without question that the Biden administration had properly invoked executive privilege here). This invariably will come back to bite them when they return to the majority and want to conduct oversight of their own, but that’s blind partisanship for you.
In this case, though, I think a court may be tempted to sidestep the open legal questions and focus on whether the House has adequately shown a need for the information. Even if the audio files are not privileged, the House still must articulate a “legitimate legislative purpose” in order to obtain them. On the other hand, if the audio files are privileged, Congress can still obtain them if it can demonstrate a specific or critical need for the information. Although it is theoretically possible for a court to conclude that the House has only met the lower of these two standards, under these circumstances I think it is more likely that it will either meet or fail both. This is particularly true given that the Supreme Court has suggested that there is an enhanced standard for non-privileged materials which involve the president’s “personal information,” which is arguably the case here. See Trump v. Mazars, 140 S.Ct. 2019, 2035-36 (2020). Among other things, this means that a court may need to scrutinize the asserted legislative purpose more carefully than it otherwise would. See id. at 2036 (“courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose”). Thus, it really comes down to whether a court is persuaded that Congress has a legitimate legislative need for the audio files which cannot be satisfied by the transcript.
It seems to me that if a serious question has been raised about the president’s cognitive abilities (and it has), that is a matter of legitimate public concern and a proper subject for congressional inquiry. However, things get a little tricky here because the House committees are not, as I understand it, purporting to investigate the president’s mental state directly. Instead, they are claiming that Special Counsel Hur’s decision not to prosecute President Biden is dependent on his assessment of Biden’s mental condition and it must review the audio files to determine whether that assessment was reasonable and correct. If not, they suggest, serious questions would be raised about the decision not to prosecute Biden and the Justice Department’s commitment to “impartial justice” in light of the fact that it is prosecuting a former president (guess who?) for “allegedly mishandling classified information.” Garland Contempt Report at 12.
This strikes me as a rather convoluted legislative purpose. The audio files may or may not provide additional support for the special counsel’s assessment of Biden’s mental state, but surely they would not discredit that assessment. It is also hard to imagine the House committees arguing with a straight fact that they think Biden is perfectly compos mentis and expect that the audio files will confirm their suspicion. (Talk about laughable!)
On the other hand, a court might look at the legislative purpose issue differently. It might take it as a given that the committees have a legitimate reason to investigate (as part of an impeachment inquiry) whether Biden willfully mishandled classified information and (as part of an oversight inquiry) whether the special counsel properly and fairly performed his duties in the course of deciding not to prosecute Biden for that conduct. After all, the Biden administration has tacitly acknowledged the committees’ legitimate legislative purposes by cooperating with their investigations and providing them with confidential information such as the interview transcripts. The question would then come down to whether the audio files contain significant information not found in the transcripts. If a court looks at the issue from this perspective, it might well be persuaded that the House has met its burden of demonstrating a specific need for the information.
The committee Democrats make two primary points on legislative purpose and need. First, they argue that “Biden’s age was not a material aspect of Hur’s decision to decline prosecution.” Garland Contempt Report at 32 (dissenting views). I have not attempted to study this issue closely, but I am somewhat skeptical this will carry the day. As I understand it, the special counsel’s non-prosecution decision was based in large part on the lack of sufficient evidence to prove Biden’s state of mind beyond a reasonable doubt, which in turn reflected Biden’s inability to recall many details of how he came to possess and retain the classified information in question. The special counsel’s assessment of Biden’s memory and how it would be perceived by a jury seems fairly integral to this decision. As noted earlier, however, the majority’s case would be much stronger if it were investigating Biden’s mental faculties directly, rather than investigating Hur’s assessment of Biden’s faculties and the relationship between that assessment and the non-prosecution decision.
The minority’s second point on legislative need is that there was no basis in the record to support the characterization of Biden as senile or mentally incompetent. If not laughable, this point is at least amusingly ironic in light of the conventional wisdom that has emerged in the aftermath of Biden’s debate performance. According to the minority, “President Biden was in clear command of his cognitive functions” and “was able to recall items with specific detail during 5 hours of interview.” Garland Contempt Report at 34 (dissenting views). Heh, too bad he didn’t save some of those cognitive functions for the presidential debates or his other public appearances. Also one cannot help but chuckle at the sentence where the minority refers to “President Trump” when it apparently meant President Biden. See id. at 36 (dissenting views) (accusing majority of “blatant falsehoods that that the special counsel found President Trump ‘incompetent’ to stand trial”) (emphasis added).
Finally, both the committee Democrats and the Justice Department attack the House committees on the ground that their claimed reasons are pretextual. They assert that the actual reason is to score political points against Biden in advance of the election. McCarthy views this as the most “laughable” of the arguments against producing the audio files. He points out that the reasons for seeking the audio files are no more political than the reasons for withholding them; both sides expect that the evidence will embarrass Biden by revealing his cognitive decline. Moreover, McCarthy argues that the demand for information here is actually less political, or at least less pretextual, than in some other congressional investigations where the objective is not to get the information at all, but simply to “frame” the subpoena recipient for contempt.
I agree with McCarthy that we do not (and should not) assess the validity of a congressional investigation or subpoena by reference to the subjective motives of the members involved. So long as there is a legitimate legislative purpose (which is, at least in theory, an objective test) it does not matter whether the members are politically motivated. Indeed, it is hardly uncommon for political motivations to play a significant role in congressional investigations.
That being said, I have to point out again how McCarthy’s perspective here contrasts with his approach to the Bannon contempt. He accuses the “highly partisan” January 6 committee of “Trump-deranged norm-breaking,” yet if one rejects the criticism that the Garland contempt is politically motivated, one surely must reject it with regard to Bannon. As explained in my last post, there was little political benefit to the January 6 committee (and for Republicans like Liz Cheney, a clear political liability) in going after Bannon. And if one applies the standard McCarthy uses for the Garland case (does the committee actually want the evidence as opposed to the spectacle of holding someone in contempt), the comparison in favor of the Bannon contempt is particularly stark. There can be no doubt Bannon was a key fact witness regarding the January 6 attack on the Capitol and possibly the most important fact witness, other than Trump himself, regarding the extent to which the attack was premeditated and part of a larger plan to overturn the election. See Liz Cheney, Oath and Honor 224-35. To my knowledge Bannon has not contested that there was a legitimate legislative purpose for seeking his testimony and, to the extent that he has explicitly or implicitly challenged the legitimacy of the January 6 committee’s subpoena on that ground, his position has been rejected by Judge Nichols, the jury, and the court of appeals.
In Garland’s case, it may well be that the House committees would like to actually get the audio files, but it is not unreasonable to thing their objectives are largely performative, i.e., they are less interested in the substantive information the audio files may reflect (particularly now that the evidence of Biden’s cognitive decline has become so abundant) than in using the drama of the subpoena fight to keep public attention on the issue. The effort to get Bannon to testify, in contrast, more closely resembles the straightforward fact-gathering that is traditionally considered the hallmark of legitimate oversight. See generally Josh Chafetz, Congressional Overspeech, 89 Fordham L. Rev. 529, 548-51 (2020) (describing the “consensus view” that proper oversight should consist of nonpartisan fact-gathering and non-theatrical presentation), Whatever the merits of the more performative type of oversight, it is bizarre to criticize the January 6 investigation as partisan and political while dismissing any such criticism regarding the investigation of President Biden.
Remedies
This brings us to the question of remedy. As mentioned in my last post, the Republican House certified Garland’s contempt pursuant to 2 U.S.C. § 194, just as the Democratic House did with respect to Bannon’s contempt. In both cases this was the normal practice. However, as we have discussed previously, the Justice Department’s longstanding position precludes prosecution of executive officials who assert privilege at the president’s instruction. As a consequence, criminal contempt is not effectively available as a remedy in Garland’s case. In Bannon’s case, it was available, which is why Bannon is now in prison. It is also why private parties like Bannon usually do not defy congressional subpoenas.
For executive officials like Garland, the incentives are different. There is no reasonable possibility of criminal prosecution. There is a chance of civil litigation (as the House has commenced against Garland), but that takes too long to have a meaningful effect on the subpoena dispute and in the worst case scenario (from Garland’s perspective) would involve no personal adverse consequences.
The absence of any effective mechanism for resolving executive-legislative information disputes contributes to the vicious cycle that McCarthy correctly criticizes. Because they know there will be no legal consequences, executive officials have less incentive to cooperate with congressional demands for information. Because they know there is not going to be a timely judicial resolution of the dispute, congressional committees have little reason to exercise restraint in deciding which disputes should result in a contempt certification by the legislative body. Because such certifications therefore have become more frequent, executive officials are increasingly dismissive of the reputational costs of being held in contempt by Congress. And so the downward spiral continues.
This pattern can also be seen in the partisanship in Congress on matters of contempt. When the House voted to hold EPA Administrator Gorsuch in contempt in 1982, the vote was 259-105, and more than 50 Republicans voted with the majority. This was not necessarily because they approved of or supported the investigation which resulted in the contempt, but because they supported the principle that the executive could not withhold information from Congress. By contrast, contempt certifications of the last few decades have mostly been party line affairs, including the Garland contempt.
One way to break the cycle of dysfunction would be to try a new mechanism for resolving information disputes. A proposal from Mort Rosenberg and Good Government Now has been to revive so-called inherent or direct contempt (which, as readers of this blog know well, involves trial and imprisonment of the contemnor by the legislative body itself). Under this proposal, the alleged contemnor would be entitled to present a defense, first before a select committee established for the purpose of making an initial assessment of the contempt and then, if necessary, in a summary trial on the floor. If the individual is held in contempt, a daily fine (rather than imprisonment) would be imposed until the contempt is purged by compliance with the subpoena.
Enter Representative Anna Paulina Luna, who has introduced an inherent contempt resolution that would declare Garland to be in contempt and levy a $10,000 per day fine against him. Unlike the Rosenberg/GGN proposal, this resolution does not provide for a trial of the alleged contemnor nor provide any opportunity for him to present a defense. The absence of any process such as the House has traditionally provided to alleged contemnors would probably have made this a non-starter were it challenged in court. It is therefore perhaps fortunate that it was defeated by a 204-210 vote last week.
Nonetheless, I think Luna was on to something. As she noted: “If we fail to hold Garland accountable, we will signal to whoever controls the White House it is impervious to congressional oversight, and that the constitutionally recognized power of the House of Representatives is merely a suggestion and not to be taken seriously.”
Whatever one thinks about the merits of the Garland contempt, Luna is absolutely right about that, and perhaps House Democrats might want to try to think about 6 months in the future before dismissing her point out of hand. Instead, Representative Jim McGovern called the resolution a “B.S. political stunt” and blasted Republicans for hypocrisy. No doubt he is right about the latter point at least, though there is no hypocrisy shortage on either side of the aisle.
The bigger issue, though, is that now that the courts have effectively declared the president to be a super-citizen, the only check against presidential criminality and many abuses of executive power will be congressional oversight and impeachment. It is more important than ever that Congress have means of enforcing its demands for information, and that imperative should override partisan bickering over this particular contempt.
The Garland contempt might not be the ideal test case for taking this issue to court, but consider this. If the House were to provide for a trial before a select committee, along the lines proposed by Rosenberg/GGN, and Garland appeared to present a defense, that in itself would constitute a precedent that could be built upon in future cases. In that case the wisest course might be for the select committee not to recommend further action. Conversely, if Garland refuses to appear, then he could be held in contempt for that refusal, instead of just the failure to provide the audio files.
There are a lot of congressional measures that should be considered to address the new world of executive impunity, and we might as well start with this one.