WASHINGTON – House Republicans filed suit Monday against Attorney General Merrick Garland over the audio recording of President Joe Biden interview with a special lawyer in your confidential documents caseasking the courts to enforce their subpoena and reject the White House’s effort to withhold the materials from Congress.
The lawsuit filed by the House Judiciary Committee marks the latest attack by Republicans against the Justice Department as partisan conflict over the rule of law intensifies the 2024 presidential campaign. The legal action comes weeks after the White House blocked Garland from releasing the audio recording to Congress, asserting executive privilege.
House Republicans responded by voting to make Garland the third attorney general in U.S. history to be carried out in contempt of Congress. But the Justice Department refused to accept the contempt referral, citing the agency’s “longstanding position and uniform practice” of not prosecuting officials who fail to comply with subpoenas due to the president’s claim of executive privilege.
The Congressional investigation began with the release of Special Counsel Robert Hur Report in February, which found evidence that Biden, a Democrat, intentionally withheld and shared highly sensitive information when he was a private citizen. However, Hur concluded that criminal charges were not warranted.
Republicans, outraged by Hur’s decision, issued a subpoena for audio of her interviews with Biden during the spring. But the Justice Department turned over only some of the records, omitting the audio of the interview with the president.
On the last day to comply with Republicans’ subpoena for the audio, the White House blocked its release by invoking executive privilege. It claimed that Republicans in Congress just wanted the recordings to be “cut” and used for political purposes.
Executive privilege gives presidents the right to withhold information from the courts, Congress, and the public to protect the confidentiality of decision-making, although it can be challenged in court. Administrations from both major political parties have long held the position that officials who claim a president’s executive privilege cannot be prosecuted for contempt of Congress, a Justice Department official told Republicans last month.
Assistant Attorney General Carlos Felipe Uriarte cited a committee’s 2008 decision to back down on a contempt attempt after President George W. Bush asserted executive privilege to block Congress from obtaining records involving Vice President Dick Cheney.
It is unclear how the process will unfold. Courts don’t have much to say about executive privilege. But in the 1974 case over President Richard Nixon’s refusal to release Oval Office recordings as part of the Watergate investigation, the Supreme Court held that the privilege is not absolute. In other words, the argument for turning over documents or allowing testimony may be more convincing than arguments for withholding it. In this context, the court ruled 8-0 that Nixon should hand over the tapes.
When it came to the Watergate tapes, the Supreme Court said it had the final say, and lower courts have occasionally stepped in to resolve other disputes. But the courts have also made clear that they prefer the White House and Congress to resolve their disagreements without judicial intervention when possible.
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