Attorney General Merrick Garland is on the clock.
Two House committees have voted to indict Garland for contempt of Congress. House Republicans are frustrated that Garland has not released the transcript of special counsel Robert Hur’s interview with Biden in the classified documents case. Garland did release the transcript. But Hur suggested that one of the reasons he did not indict Biden was because he thought jurors might sympathize with the president, viewing him as a forgetful old man.
Many Republicans have routinely maintained that the president is not fully in power. The Wall Street Journal has now joined that chorus. Republicans have not been very subtle about why they want the tapes. They believe they could reveal a weak chief executive who is not in full control of his faculties. As a result, Republicans may be able to use the tapes to lash out at Biden and prove their case to voters before the election.
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“The recording may be accurate, but you know what? The audio would tell you so much more,” said Rep. Andy Biggs, R-Arizona, during Garland’s Judiciary Committee hearing on Tuesday.
Rep. Dan Bishop (RN) told Garland that the tape was ” [the president’s] capacity. “
Garland refused to turn over the tapes, so the House Oversight and Judiciary committees voted to hold him in contempt of Congress.
It’s not 100% certain that every member of Congress has the votes to hold Garland in contempt. Republicans hold a 218-213 advantage in the House. With the election of Republican Rep. Vince Fong of California, Fong replaced former House Speaker Kevin McCarthy, who resigned.
But even if the House votes to hold Garland in contempt, it’s doubtful it will accomplish much.
U.S. Attorney General Merrick Garland testified to the House Judiciary Committee on Tuesday on Capitol Hill in Washington, DC. (Getty Images)
Lawmakers could send contempt charges to the Justice Department for failing to comply with subpoenas for documents and testimony, meaning a Justice Department led by Garland would not prosecute its own attorney general.
In other words, the Republican Party is at a standstill.
This is where the “essential contempt” comes in.
Essentially, contempt is a power that Congress can exercise independently without relying on other branches of government. In other words, Congress can vote to hold someone in contempt for failing to provide information. In essence Uses its unique power to discipline, arrest, and detain anyone who disobeys the House or Senate.
Lawmakers from both parties have spoken off and on for years about relying on natural contempt to get their way, but until recently, for the first time in 90 years, no one had seriously considered it as a legitimate option.
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Rep. Ana Paulina Luna, R-Fla., said she would introduce a resolution for substantial contempt 10 days after the House voted for a “regular” contempt charge against Garland. The idea is that since the Justice Department will not indict Garland, Congress will address the issue itself.
Of course, we don’t know whether the House would have the votes needed to pass an essential contempt resolution, especially since there is uncertainty about “conventional” contempt as well. But let’s look at essential contempt for a moment and consider how it might work.
In the early days of the Republic, Congress relied on the original contempt law. In fact, Congress voted to file contempt charges against various newspaper publishers in the late 18th and early 19th centuries. In 1927, a Senate committee voted to approve warrants for witnesses who had not complied with subpoenas, but the courts ruled that the Senate had overstepped its authority in that case.
The last time Congress used the contempt rule was in 1934, when it held Commerce Department officials in contempt after they refused to comply with congressional subpoenas seeking documents related to the airmail scandal.
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What does that entail?
After the vote, the House sent in House marshals to arrest the employee, who was then held in custody for a week and a half at the Willard Hotel, a luxury hotel in downtown Washington near the White House.
Substantial contempt is inherently intriguing, but it is also inherently disruptive. Can you imagine what would unfold if the House approved a substantive contempt resolution against Garland? Would House Sergeant at Arms Bill McFarland and a group of his men, or officers from the U.S. Capitol Police, show up one day at Garland’s home or at the Department of Justice and demand that the Attorney General accompany them? How would Garland’s security detail respond? Would this be a simple visit to inform Garland that he is being held in substantive contempt of Congress? Or would this lead to a tense exchange between the legislative and executive branches?
And if Mr. Garland comes to the Capitol with Mr. McFarland, will the House continue to hold him? Tell me where. Will Mr. Garland come to the Capitol right away to appear before the Oversight and Judiciary Committees?
No one is sure, not even Luna, the bill’s sponsor.
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“Ideally, the attorney general will do the right thing and provide the representatives with the information we are seeking, but it will be up to him to decide whether that violates the law,” Luna said.
Since the essential contempt would mean a significant escalation with potential conflict between the two branches of government, I asked what the plan was.
“I don’t think it’s been done in a while. We’ll see what happens,” Luna said.
I confronted Luna about the potential conflict between McFarland and Garland.
“I don’t think they expected us to propose this so soon,” Luna responded. “This is absolutely doable.”
But nobody knows how to do that.
U.S. Attorney General Merrick Garland testified before the House Judiciary Committee on Tuesday at the Rayburn House Office Building in Washington, DC. (Chip Somodevilla/Getty Images)
A senior House security official told Fox the matter is under review, but everyone is just waiting to see what happens.
But first two things have to happen: The House has to vote to hold Garland in contempt, and then they have to vote to hold Garland in substantive contempt, and so far the House has not demonstrated that it has the votes to hold Garland in “ordinary” contempt.
“Sgt. [Garland’s] “The office. His house,” I pointed to Luna.
“We don’t want that to happen,” the Florida Republican responded.
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But as far as I know, there is no plan. Inherent contempt is inherently complicated, inherently messy, inherently noisy.
