House GOP Will Go to Court to Obtain Biden-Hur Audio, Speaker Johnson Says, after DOJ Declines to Prosecute

House lawmakers will take their fight over the audio from President Joe Biden’s special-counsel interview to court, Speaker Mike Johnson said Friday, after the Department of Justice declined to prosecute a contempt-of-Congress charge against Attorney General Merrick Garland. 

House Republicans voted on Wednesday to hold Garland in contempt for refusing to turn over the audio from Biden’s interview with special counsel Robert Hur. But in a letter to Johnson on Friday, the DOJ said the refusal to provide the audio “did not constitute a crime.”

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.

Assistant attorney general Carlos Felipe Uriarte wrote in a letter to Johnson that the agency’s “longstanding position and uniform practice” is to not prosecute officials who don’t comply with subpoenas because of a president’s claim of executive privilege. The department therefore “will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General,” Uriarte wrote.

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.

Johnson called the response “sadly predictable” and noted the department “aggressively prosecuted” Trump allies Steve Bannon and Peter Navarro for contempt-of-Congress charges.

“This is yet another example of the two-tiered system of justice brought to us by the Biden Administration,” he said in a statement, in which he said he will be certifying the contempt reports to the U.S. Attorney for the District of Columbia.

“We will also move to enforce the subpoena of Attorney General Garland in federal court,” he said.

Garland is the third attorney general in American history to be held in contempt.

The special counsel said in February that he would not recommend that Biden face charges for his mishandling of classified documents after leaving the office of the vice presidency, though he found that Biden “willfully retained” such materials.

The report says investigators found that 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 first mentioned Beau’s death.