The AG is not withholding Hur’s work. He is withholding his own work.
The AG is not withholding Hur’s work. He is withholding his own work.
I ’m sorry to see the Garland contempt citation by the GOP-controlled House. Not because Attorney General Merrick Garland is undeserving of censure. The censure is appropriate. No, I’m sorry to see this spectacle because it is futile, and it is emblematic of Congress’s dysfunction — and the government’s, broadly speaking.
The Justice Department is withholding the recording of President Biden’s interview by former special counsel Robert Hur. That evidence should obviously be disclosed.
I am certain Robert Hur is an ethical prosecutor, and Democrats sure are angry at him for saying aloud what is notorious but, for them, unutterable: Joe Biden is a fast-deteriorating old man who can’t remember basic things, and at times can’t conduct a linear conversation — an 81-year-old who patently isn’t up to the world’s most important and toughest job, which he is currently asking to be reelected to for another four years. This has nothing to do with his being a lefty; it’s about his being senescent.
All that said, however, Hur was not independent in his capacity as special counsel. He was a Biden Justice Department prosecutor who reported to Garland. Hur’s work is directly attributable to Garland. Garland is asking Congress to trust him that the transcript, which is not the real evidence of what Biden said in the interview, is fair and accurate. No federal prosecutor gets that indulgence in an official proceeding governed by evidentiary rules, and Congress has no reason to give it to Garland.
For all their bunkum about how “independent” special counsels are, it is the Biden Justice Department’s official position that the AG is directly responsible for the work of special counsels.
Don’t take my word for it. Look, for example, at the brief Biden DOJ special counsel Jack Smith has filed in the Trump Florida case, in which his constitutional legitimacy as a supposedly independent prosecutor has been challenged. Don’t have time to read a short brief? Okay, just skim the table of contents: “The Special Counsel reports to and is supervised by the Attorney General”; “The Special Counsel is subject to supervision and oversight”; “The Special Counsel is removable by the Attorney General”; and so on. It’s the same in Smith’s Washington, D.C., case against Trump. At the oral argument in the immunity case, asked by Justice Samuel Alito whether he was speaking only on behalf of the special counsel, Smith’s deputy, Michael Dreeben, replied, “I am speaking on behalf of the Justice Department, representing the United States.” (See Transcript, p. 109.)
Garland is not withholding Hur’s work. He is withholding his own work — the work of the department for which he is responsible.
Moreover, the special-counsel regulations Garland selectively follows make him, not Hur, the decisionmaker regarding publication of the fruits of the investigation. When Garland withholds an electronic recording, he is in effect saying, “Trust me when I tell you the transcript is a fair and accurate representation of the president’s statements, and the recording itself would not provide you with any additional relevant information.” Why should anyone trust him on that? Again, no federal prosecutor gets to tell a court, “Trust me, the transcript is accurate.” And Garland is not just any federal prosecutor. He is Biden’s top political appointee at the DOJ, he reports directly to Biden, and — as we’ve seen time and again — he has a well-earned reputation for protecting Biden from investigative scrutiny and using the Justice Department politically in Biden’s interests.
In any American trial involving electronically recorded English-language conversations that are admitted into evidence, the judge instructs the jury that the evidence is the recording, not the transcript. If there is a discrepancy between the two, the recording takes precedence (the transcript is considered merely an aid to the jury, not the actual proof of what was said).
At least equally obviously, an electronic recording is the best evidence of the events it depicts. There are aspects of behavior and state of mind that are decipherable in a recording but not in a transcript. (And for that reason, a video recording with audio is better than an audio-only recording — assuming the audio in both is of equal quality). This is common sense.
Garland’s rationales for stonewalling are laughable — especially his claim that congressional Republicans want the recording for political reasons when, of course, he is withholding it for exactly similar political reasons: Lawmakers know the recording will embarrass the president, and so does the AG.
And how precious for the Justice Department to argue that, if it surrenders evidence that is undeniably relevant to congressional oversight, it could be corrupted by artificial intelligence! The next time you get a subpoena from all the nice prosecutors in Garland’s department, try telling them you won’t comply because you’re worried the government might deviously distort anything you produce . . . let us know how that works out for you.
Note, moreover, that in 2019, House Democrats held Trump’s attorney general, Bill Barr, in contempt for withholding information from the Mueller investigation that was trivial compared to what we are talking about here. Barr disclosed well over 90 percent of Mueller’s two-volume, 400-page report. It was obvious that he did not hold back any information that was embarrassing to the then-president. To the contrary, he withheld grand-jury information. Under the governing grand-jury secrecy statutes (here and here), there is no provision for providing grand-jury information to Congress, and the Justice Department had taken the position in court that these statutes mean what they say. As I noted at the time, all Congress had to do to get the Mueller grand-jury information was amend the statutes to provide for disclosure to Congress — there would easily have been the votes for that. But Democrats didn’t want the information; they wanted to portray Barr and the Trump administration as obstructing the investigation — notwithstanding that Barr had given them the mounds of information on which their investigation was based.
Here, Republicans are not trying disingenuously to frame Garland as guilty of obstruction. They actually want the information — the recording.
The AG may not like the fact that Republicans have a political agenda, just as he does. But that comes with the territory. Throughout the Trump years, congressional Democrats hounded the president to surrender his financial information. It could not have been more obvious that the demands were politically motivated — Trump had reneged on a promise of disclosure made during the 2016 campaign, and forcing him to come clean became a Democratic crusade. Congressional Democrats ginned up ostensible legislative purposes for why they needed the information, but this was hardball politics, and everyone knew it. Nevertheless, the courts ruled that if Congress can state a proper legislative purpose, its demands are valid and a court will not get into whether the motivations stem from partisan politics.
Of course, a court can only rule. It can’t force the executive branch to obey. Garland and the Biden administration have made the political calculation that the political hit Biden will take for withholding the tape and obstructing Congress, while not insignificant, pales in comparison to the damage Biden would sustain if the public were to hear the recording just months prior to the election. So Garland will eat the contempt citation and the administration will tough it out — knowing the media-Democrat complex will go easier on the blatant obstruction of Biden and Garland than it would on a Republican administration, especially if the broadcast of the recording could help make Trump president again.
The sad thing is that separation of powers and the proper functioning of Congress have been shredded by partisan politics.
As designed by the Framers, separation of powers relies on the branches of government to defend their institutional prerogatives. If the executive is withholding relevant information, indicative of corruption, incompetence, or other embarrassing conduct, Congress has a responsibility to conduct oversight and an institutional interest in the principle that the executive must surrender relevant, non-privileged information. That interest should transcend partisanship — i.e., if you are a member of Congress, you have a duty to defend Congress’s prerogatives, even if doing so may cause problems for a president of your own party. When that is the rule of the road, then (a) Congress functions reasonably well, and (b) the executive branch takes more reasonable positions, knowing it cannot rely on blind partisanship to thwart Congress.
But the rule of the road today is blind partisanship. This is particularly true of Democrats. When a Democrat is in the White House, congressional Democrats care not a whit for the prerogatives of Congress; they march lockstep with the White House and the Justice Department, even in the obstruction of Congress. Increasingly, Republicans do the same.
The result is that everything deteriorates. We went 223 years of constitutional governance without a single instance of Congress holding an attorney general of the United States in contempt. It’s now happened three times in the last dozen years — to three of the last five AGs. And it will keep happening. In a constitutional republic that prioritizes separation of powers, the bulwark of liberty, contempt of Congress is a real sanction. In a partisan clown show, a contempt finding by the House under one party’s control is worn like a badge of honor by the adversary-party recipient. No doubt the Biden campaign is already fundraising off the Garland contempt citation.
That would be the same Biden campaign that knows that recording can’t see the light of day.