Topline
The House could vote as soon as this week whether to order the arrest of Attorney General Merrick Garland using an obscure tool that’s been dormant for nearly 100 years—the latest GOP-backed effort to target the Justice Department as former President Donald Trump claims the agency has been weaponized against him.
Key Facts
Rep. Anna Paulina Luna, R-Fla., said she will force a vote to hold Garland in “inherent contempt,” a mechanism that allows the House sergeant-at-arms to unilaterally punish someone for refusing to comply with congressional demands, outside of Justice Department purview.
Luna’s move comes after the Justice Department declined to prosecute Garland when the House earlier this month voted to hold Garland in contempt of Congress for refusing to release audio of Special Counsel Robert Hur’s interview with President Joe Biden in Hur’s investigation of Biden’s handling of classified documents.
The Justice Department, in denying the request, cited long-standing DOJ precedent against prosecuting government officials who withheld information or materials from Congress when the White House asserts executive authority over the materials.
By holding Garland in “inherent contempt,” the House sergeant-at-arms would have the authority to detain Garland and bring him “to the House for questioning and compel him to produce the requested evidence,” Luna wrote Monday in a letter to colleagues obtained by Politico, noting Garland could “then be detained in either the Capitol or in D.C.”
Luna argued “the executive branch will continue to withhold information from Congress if there are no consequences for their actions,” writing “it is imperative that Congress uses its inherent contempt powers and instructs the Sergeant at Arms to bring Attorney General Garland to the House for questioning and compel him to produce the requested evidence.”
“Inherent contempt” has not been used since 1935, and has “been described by some observers as cumbersome, inefficient and ‘unseemly,’” according to the Congressional Research Service, as it triggers a drawn-out hearing or “trial” within the House and would likely be challenged in court by Garland.
Surprising Fact
House Democrats discussed using inherent contempt to fine Trump officials who refused to comply with subpoenas in their investigation into Russian interference in the 2016 election, but never acted on the proposal.
What To Watch For
It’s unlikely the House approves the measure under the GOP’s slim 218-213 majority, meaning Republicans can afford to lose just two votes, assuming all Democrats vote against the resolution. Already, one Republican, Rep. Dave Joyce, Ohio, voted against holding Garland in contempt.
What We Don’t Know
Whether a warrant for Garland’s arrest could be executed by another law enforcement agency or only the House sergeant-at-arms, who is responsible for security in all House buildings. Luna’s resolution states it would authorize the sergeant-at-arms “to take into custody the body of Attorney General Garland wherever found, and to bring Attorney General Garland before the bar of the House of Representatives.”
Key Background
The House voted 216-207 to hold Garland in contempt after he refused to publicly release the tapes from the interview that led Hur to describe Biden as an “elderly man with a poor memory.” Garland’s office instead released a full transcript of the interview and argued that unveiling the tapes could deter witnesses from testifying in future Justice Department probes. Democrats alleged House Republicans wanted the tapes to use in pro-Trump campaign advertisements. Since 2008, Congress has held 10 people in contempt, including former Attorney Generals Eric Holder and William Barr. The Justice Department declined to prosecute both of them after Trump and former President Barack Obama asserted executive privilege over the documents they refused to release to Congress. Trump’s allies in Congress have targeted Garland as the former president has claims, without evidence, the DOJ is prosecuting him on charges of interfering in the election and mishandling classified documents at Biden’s behest to prevent him from being elected. Biden and the DOJ have repeatedly denied any coordination on the two cases, which are being handled by Special Counsel Jack Smith’s office to avoid allegations of a conflict of interest.
Further Reading
House Holds Merrick Garland In Contempt Over Biden Tapes (Forbes)
Merrick Garland Avoids Contempt Prosecution After Justice Department Declines To Pursue Charges (Forbes)