WASHINGTON —
Atty. Gen. Merrick Garland will not be prosecuted for contempt of Congress because his refusal to turn over audio of President Biden’s interview in his classified documents case “did not constitute a crime,” the Justice Department said Friday.
In a letter to House Speaker Mike Johnson (R-La.), a Justice Department official cited the agency’s longstanding policy not to prosecute officials who don’t comply with subpoenas when a president makes a claim of executive privilege.
The Democratic president asserted executive privilege in the matter last month, blocking the release of the audio, which the White House says Republicans want only for political purposes.
The Justice Department’s decision comes days after the House voted along party lines to hold Garland in contempt of Congress.
Republicans were incensed when special counsel Robert Hur declined to prosecute Biden over his handling of classified documents, and quickly opened an investigation. GOP lawmakers — led by Reps. Jim Jordan of Ohio and James Comer of Kentucky — sent a subpoena for Hur’s interviews with Biden earlier this spring. But the Justice Department turned over only some of the records, leaving out audio of the interview with the president.
The attorney general has said the Justice Department has gone to extraordinary lengths to give lawmakers information on Hur’s investigation. However, Garland has said releasing the audio could jeopardize future sensitive and high-profile investigations by making future witnesses more concerned about cooperating with authorities.
Executive privilege protects a president’s ability to obtain candid counsel from his advisors without fear of immediate public disclosure, and protects confidential communications relating to official responsibilities.
Garland is the third attorney general to be held in contempt of Congress.
The most recent was William Barr in 2019, when the House, under Democratic control at the time, voted to issue a referral against Barr after he refused to turn over documents related to a special counsel investigation into then-President Trump.
In 2012, Atty. Gen. Eric H. Holder Jr. was held in contempt related to the gun-running operation known as Operation Fast and Furious.
In both instances, the Justice Department took no action against the attorney general.
The special counsel in Biden’s case, Hur, spent a year investigating the president’s improper retention of classified documents from his time as a senator and as vice president. Hur said he found insufficient evidence to successfully prosecute a case in court.
A transcript of the Hur interview showed Biden, 81, struggling to recall some dates and occasionally confusing some details — something longtime aides say he’s done for years in public and private — but showing deep recall in other areas.
Richer writes for the Associated Press.