After DOJ Declines to Prosecute Garland, House Vows to Take Biden Audio Issue to Court

AP Photo/J. Scott Applewhite

If the mountain won't come to Mohammed...

On Friday, the Department of Justice advised House Speaker Mike Johnson (R-LA) that it would not pursue prosecution of its own head honcho, Attorney General Merrick Garland, despite the House holding him in contempt for ignoring its subpoena and refusing to turn over the audio of Special Counsel Robert Hur's interview with President Joe Biden.

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Department of Justice to Speaker Johnson: No Prosecution of Merrick Garland for Contempt of Congress


In a sharply worded letter, the Department of Justice informed Speaker Mike Johnson that it would not prosecute Attorney General Merrick Garland for contempt of Congress for refusing to turn over an audio file of President Joe Biden's deposition in his classified documents case.

"Consistent with this longstanding position and uniform practice, the Department has determined that the responses by Attorney General Garland to the subpoenas issued by the Committees did not constitute a crime, and accordingly the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General," the Justice Department said. 

In response, Johnson announced the House's next move: They'll see them in court

Speaker Mike Johnson said Friday that the House will go to court to enforce the subpoena against Attorney General Merrick Garland for access to President Joe Biden’s special counsel audio interview, hours after the Justice Department refused to prosecute Republicans’ contempt of Congress charge.

“It is sadly predictable that the Biden Administration’s Justice Department will not prosecute Garland for defying congressional subpoenas even though the department aggressively prosecuted Steve Bannon and Peter Navarro for the same thing,” Johnson said in a statement. “This is yet another example of the two-tiered system of justice brought to us by the Biden Administration.”

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Johnson raises a point that several have noted: The DOJ sure seems comfortable declining to prosecute the AG, while it was more than eager to prosecute former President Donald Trump advisers Steve Bannon and Peter Navarro over essentially the same thing. For what it's worth, there may be a bit of nuance there.

The Justice Department noted that it also declined to prosecute Attorney General Bill Barr, who was held in contempt in 2019. The Democratically controlled House voted to issue a referral against Barr after he refused to turn over documents related to a special counsel investigation into former President Donald Trump.

The Justice Department similarly declined to prosecute former Trump White House chief of staff Mark Meadows after he was held in contempt of Congress for ceasing to cooperate with the Jan. 6 Committee investigating the attack on the U.S. Capitol. Years before that, then-Attorney General Eric Holder was held in contempt related to the gun-running operation known as Operation Fast and Furious. The Justice Department also took no action against Holder.

The key to the DOJ declination appears to be executive privilege. The reason that might not be a lifeline for Bannon is that it's not at all clear that Trump formally asserted executive privilege as to the matters on which he was called to testify — or at least not as to all of them. With Navarro, it appears to be a closer call, and that issue is still being litigated, even while Navarro sits in prison over it. 

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One other distinction — at least as to Holder, Barr, and Garland — is the noted conundrum of the DOJ essentially prosecuting itself. 

Apparent prosecutorial dead-end notwithstanding, Johnson's vowing to push forward.

“I will be certifying the contempt reports to the U.S. Attorney for the District of Columbia,” the Louisiana Republican said. “We will also move to enforce the subpoena of Attorney General Garland in federal court.”

I'm sure Matt Graves is anxiously awaiting the referral...

In any case, watching this all unfold should be interesting. 

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