The Justice Department announced Friday that it would not prosecute Attorney General Merrick B. Garland for failing to comply with a congressional subpoena seeking audio recordings of the special counsel’s interview with President Biden.
The decision was expected: The Justice Department does not believe it is a crime for government officials to fail to comply with a subpoena for documents when a president invokes executive privilege, as Biden did last month, a constitutional privilege that allows certain inside information about the executive branch to be legally kept secret.
“It has been the Department of Justice’s long-standing position that we will not prosecute for contempt of Congress officials who refuse to provide subpoenaed information, subject to the President’s assertion of executive privilege,” Assistant Attorney General for Legislative Affairs Carlos Felipe Uriarte said in a letter to House Speaker Mike Johnson.
“The House of Representatives disagrees with the assertions in the Department of Justice letter,” Johnson said in a statement, and said he would file a lawsuit asking a judge to order Garland to comply with the subpoena.
House Republicans voted Wednesday to hold Garland in contempt of Congress and to file criminal charges with the Justice Department, intensifying a dispute over the release of a recording of an interview with Biden by special counsel Robert K. Hur, who was investigating the president’s handling of classified documents.
Garland appointed Huh, a former federal prosecutor appointed by President Trump, as special counsel in January 2023 to investigate how classified documents from Biden’s time as vice president were stored in his Delaware home and the Washington office he used after leaving office.
Heo wrote a roughly 400-page report finding no basis for accusing Biden. He said there was some evidence consistent with a conclusion that Biden knowingly retained classified materials without authorization, but said the facts were insufficient to prove it. “In addition to this lack of evidence, there are other exculpatory explanations for the documents that cannot be refuted,” Heo wrote.
His report also makes a clear distinction between Biden’s cooperation with the investigation and former President Donald J. Trump’s repeated refusal to return classified documents stored at his Mar-a-Lago resort. (Trump is charged with storing national security documents without authorization and obstructing the government’s efforts to recover them.)
But Heo portrayed Biden as a frail man, calling him “infirm with advanced age” and an “old man with a poor memory” – descriptions the White House and Biden’s personal lawyers say are inaccurate and inappropriate.
The White House has turned over the transcripts of Heo’s interviews with Biden, but House Republicans have subpoenaed the recordings. They say they need the audio to verify the accuracy of the transcripts, among other things. Democrats have accused Republicans of wanting the recordings for partisan purposes rather than for legitimate oversight purposes.
Justice Department lawyers say executive privilege is legally justified because lawmakers already have the transcripts, and that releasing them would undermine “the Department of Justice’s ability to conduct similar high-profile criminal investigations in the future, particularly those in which the voluntary cooperation of White House officials is crucial.”
Uriarte explained that he would not open a criminal investigation into Garland at the request of House Republicans, and noted that previous administrations of both parties had taken the same position, citing the George W. Bush, Obama and Trump administrations.
