Cheered on by presumptive Republican presidential nominee Donald Trump, House Republicans set up a vote, likely for Thursday, on finding U.S. Attorney General Merrick Garland in contempt of Congress, using a power lawmakers have not exercised since the 1930s.
The move marks an escalation by Republicans in the fight with Garland to get a copy of the audio recording of an interview with President Joe Biden in the investigation of sensitive government documents he retained after leaving the White House as vice president.
In the report by special counsel Robert Hur that rejected prosecuting Biden, Hur described the president as “an elderly man with poor memory.” Republicans say they want the audio so they can see if it matches the transcript provided to them in which Biden asked for confirmation on what year his son Beau had died.
Though Republicans had sought the audio before the June 27 presidential debate, at which Biden sometimes had trouble organizing his thoughts and fielding questions, its importance has risen since then.
“He will very likely sound exactly on that tape as he did on the stage last night, and that’s embarrassing to the president,” House Speaker Mike Johnson (R-La.) said on June 28. “We’re sorry about that. We’re not trying to embarrass the president. We’re trying to get down to the facts.”
Democrats doubt that rationale and point to the transcript’s accuracy as having already been vouched for.
When Garland refused to turn over the audio, House Republicans sued in federal court. Rep. Anna Paulina Luna (R-Fla.), a firebrand first-termer, pushed the party to instead use the so-called “inherent contempt” of Congress authority to punish Garland for refusing to cooperate.
Unlike conventional criminal contempt charges, inherent contempt is a controversial theory that Congress can punish refusal to cooperate with its subpoenas issued while carrying out its duties without having to rely on the executive branch for enforcement.
On a practical level, the authority has been rarely invoked. The House sergeant-at-arms, for one thing, would be charged with carrying out the punishment.
“Despite its potential reach, the inherent contempt power has been described by some observers as cumbersome, inefficient, and ‘unseemly,’” a 2019 Congressional Research Service report said.
“Presumably for these reasons, it does not appear that either house has exercised its inherent contempt power to enforce subpoenas or to remove any other obstruction to the exercise of the legislative power since the 1930s.”
That could change as soon as Thursday, when a resolution authored by Luna is set to be voted on that would find Garland in inherent contempt and fine him $10,000 for each day that the Hur audio is withheld.
Luna’s attempt to use the long-dormant inherent contempt power had seemed a long shot until former President Trump posted a message on his social media site earlier Wednesday urging Republicans to vote for Luna’s resolution.
“Republicans MUST GET TOUGH about stopping weaponization and cheating!” Trump said, without providing any evidence for either charge. He also suggested Republicans hold Jack Smith, the special counsel who has charged Trump in federal court in his own secret documents case, be held in inherent contempt.
Trump’s posts apparently worked, as Republicans Wednesday turned back two attempts to scuttle Luna’s resolution by tabling it or sending it back to committee, on 207-209 and 207-211 votes, respectively. In each case, four Republicans crossed over to vote for sinking Luna’s resolution but 10 Democratic absences meant Luna won.
If successful, the contempt vote will mark an escalation of the fight between Democrats and Republicans. Democrats did not turn to inherent contempt when Republican lawmakers or Trump administration officials refused to honor congressional subpoenas when Democrats controlled the House.
It will also mean Republicans, at the behest of a man convicted of 34 felony counts in New York for falsifying business records and facing myriad federal charges as well, would be voting to use Congress’ authority to formally sanction Garland, the nation’s top law enforcement officer.
Before the vote, Luna praised Trump for giving her effort the extra push, posting on social media a picture of Trump’s post and commenting, “Thank you President Trump! It’s time to hold Garland in inherent contempt!”