The Justice Department said Friday it will not prosecute Merrick Garland on contempt-of-Congress charges, two days after House Republicans voted to hold the attorney general in contempt for refusing to turn over the audio from President Joe Biden’s interview with special counsel Robert Hur.
In a letter to House Speaker Mike Johnson on Friday, the DOJ said the refusal to provide the audio “did not constitute a crime.”
House lawmakers voted 216–207 on the Garland contempt resolution on Wednesday, with one Republican representative, Dave Joyce of Ohio, joining Democrats in voting against it. Eight members did not vote on the measure. Garland is the third attorney general in American history to be held in contempt.
The House Oversight and Judiciary committees voted to advance contempt resolutions last month after the DOJ failed to comply with a congressional subpoena for the audio.
The White House blocked the audio’s release by invoking executive privilege just before the subpoena’s deadline.
A DOJ official previously told Republicans that officials who assert a president’s claim of executive privilege can’t be prosecuted for contempt of Congress.
However, before Biden invoked executive privilege, the department told House Republicans it would not comply with a congressional subpoena for the audio because Republicans did not present a valid investigative purpose for the audio.
The special counsel said in February that he would not recommend Biden face charges for his mishandling of classified documents after leaving the office of the vice presidency, though he found Biden “willfully retained” such materials.
The report says investigators found Biden’s “memory was significantly limited” when they conducted interviews with the president. Even in recordings from 2017 of conversations between Biden and his ghostwriter, Mark Zwontizer, Biden was “often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.”
In interviews last year, investigators found Biden’s memory to be even worse. He did not remember when his term as vice president ended in one interview or when it began in another interview.
He also could not remember, “even within several years,” when his son Beau died.
Investigators thus found it “would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”
While Biden defended his memory in a press conference shortly after the report’s release in February, transcripts of Hur’s two-day interview with Biden that were released the next month appeared to corroborate Hur’s report. While Biden had criticized Hur for bringing up Beau’s death during their interview, the transcript revealed that it was Biden himself who had first mentioned Beau’s death.
“The audio recording is the best evidence of the words that President Biden actually spoke,” Judiciary Committee Chairman Jim Jordan (R., Ohio) said last month ahead of the committee’s vote to advance the contempt-of-Congress measure.
The Heritage Foundation and a group of national media outlets are also fighting the Justice Department in court over a Freedom of Information Act (FOIA) lawsuit for the Biden-Hur tape. The department said in recent court filings the tape should not be released because of artificial-intelligence fears. The DOJ also defended the president’s decision to invoke executive privilege.