Contemptible
The House Judiciary Committee subpoenaed Merrick Garland to provide President Biden's recorded interview with the special counsel. Garland clamed privilege, leading to contempt charges.
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Justice in Brief
In the District of Nevada, a jury found five people guilty of operating a streaming service that violated federal copyright laws. The service searched for pirated copies of videos and made them available through their subscription-based service.
In the Eastern District of Virginia, the last two members of a RICO case involving MS-13 gang members received their sentence. The case included numerous instances of drug trafficking and, at least, four murders. The case has been ongoing since 2019 and has finally concluded.
In the Central District of California, ten people were indicted for their part in a conspiracy to bring Fentanyl into the United States and then launder the proceeds through Chinese underground banks. The case resulted from cooperation between the United States, Mexico, and China.
The Contemptible Attorney General
As part of its oversight of the Justice Department, the House of Representatives Judiciary Committee held a hearing to question United States Attorney General Merrick Garland. Prior to the hearing, the Judiciary Committee subpoenaed Garland to supply the Committee with the video recording of Special Counsel Robert Hur’s interview with President Biden relating to the illegally retained classified documents found in the President’s possession from when he left the vice-presidency. Garland responded by asserting executive privilege over the recording. In response to that the House of Representatives, last week, voted to hold Garland in contempt. When this occurs, the contempt citation goes to the Justice Department for its determination on whether to prosecute. To no one’s surprise, the Justice Department announced it would not pursue the prosecution. This raises several issues, none of them good, and only serves to pull the Justice Department deeper into the political weeds.
The chain of events leading to the Justice Department refusing to prosecute Attorney General Garland for contempt began when Special Counsel Robert Hur, as part of his explanation for not prosecuting President Biden, broached his opinion that President Biden would be perceived by the jury as a old man with a poor memory. Republicans seized on this to show that Biden is too old to be President. The House Judiciary Committee used this and Hur’s refusal as the basis for a hearing where Hur explained his decision. The Committee went further and subpoenaed the recorded interview even after the Justice Department provided the transcript.
Why? Republicans say it is necessary to evaluate Hur’s performance and determine if he was correct in refusing to prosecute Biden. Democrats say they have provided a transcript. Republicans say they cannot properly assess whether Biden came across as an old man with a poor memory without the actual recording. Is this really about getting the video so it can be used in attack ads during the campaign? Is this an either/or situation or might both apply? The fact that these questions are even an issue speaks to the poor state of political conversation at the moment.
Responding to the subpoena, the Justice Department asserted executive privilege. Since its formal recognition by the Supreme Court in the 1970s, the practice of executive privilege has expanded but the related law has not. Most executive privilege claims are worked out through negotiation. As this Congress seems loathe to negotiate, that was not an option.
Four years ago the US Supreme Court discussed, in Trump v. Mazars, how to deal with a battle between Congress and the President over executive privilege. Chief Justice Roberts, in his opinion, focused on the legislative purpose for the information. Assessing the accuracy of Hur’s judgment is not a legislative purpose. Of course, it is also not hard to argue that the House Judiciary Committee, in light of the large number of special counsel recently, wants to reform that process. Would this be true? There is only six months left in this Congress. Could they accomplish something so quickly? Should that be relevant?
Then there is the fact that this is an investigatory document of a case that was not prosecuted. Regular practice dictates that such documents are not released outside the Department to protect those investigated but not charged from the condemnation that results from being a criminal suspect. Of course, everyone knows about this investigation and the allegations so is there a need to keep it inside the Department?
As an aside, Garland’s refusal to produce the recording could be perceived as undercutting Garland’s claim that he would be independent from the White House. His refusal to provide the recording was done to protect the President. In any other instance, they would have disclosed the video.
With Garland not providing the recording, the House voted to hold Garland in contempt. Of course, the vote strictly along party lines with only one Republican not voting in favor. Yet this is the one thing that might be somewhat typical in this case. Without a basis for responding to the subpoena, the House should hold Garland in contempt.
Finally, to no one’s surprise, the Department of Justice announced it would not prosecute the case. Not only is it the Attorney General who would be prosecuted but rarely does the Justice Department pursue these cases. However, in this instance, should the Department be making that decision? Is this not a perfect instance of a conflict of interest? The Attorney General or a high-level subordinate is deciding not to prosecute the Attorney General. It seems we might need another special counsel.
The decision not to prosecute a contempt of Congress case is not unusual. Since 2008, the House has held ten people in contempt of Congress. Of those, only two have been prosecuted. The list includes several cabinet officials, two White House Counsel and two other Attorneys General.
More than anything else, this saga shows how intertwined partisan politics and prosecution have become in recent years. There is no sense that anyone involved in these high stakes battles is operating in good faith. While there may be legal principles at stake, the principles only arise because people are not clearly acting in good faith. To make the process less contemptible, we need people who are more interested in acting in good faith rather than from partisan political motives centered on who will win the next election.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!