Merrick Garland is at risk of becoming the third attorney general in U.S. history to be held in contempt of Congress as Republicans move to punish the Justice Department for refusing to turn over audio related to President Joe Biden’s handling of classified documents.
Contempt is one of U.S. lawmakers’ politically messiest and, until recent years, least-used powers. It is a tool that the House and the Senate can employ either to coerce compliance with a subpoena or to remove any obstruction from an ongoing investigation.
By approving a contempt resolution, the House would effectively be recommending that Garland be prosecuted. And recent cases against allies of former President Donald Trump including Steve Bannon and Peter Navarro have proved that a contempt resolution is far from symbolic, creating the basis for a case that can sometimes hold up in court.
Here's what to know about the contempt fight with Garland and the turmoil ahead.
Why are Republicans pushing to hold Attorney General Merrick Garland in contempt?
The push to hold Garland in contempt is just the latest broadside by Republicans against the Justice Department.
GOP lawmakers — led by Reps. Jim Jordan and James Comer — moved ahead with holding Garland in contempt for refusing to fully comply with a congressional subpoena issued as part of their probe into special counsel Robert Hur’s decision not to charge the Democratic president with any crimes. Hur investigated Biden's handling of classified documents.
The House Judiciary and Oversight & Accountability committees' chairmen had ordered the Justice Department to turn over audio of Hur’s interviews with Biden by early April. But officials provided only some of the records, leaving out the audio of the Biden interview and warning of the precedent that would be set for future investigations if the audio was provided.
On the last day to comply with the subpoena, the White House blocked the release of the audio by invoking executive privilege. It said Republicans in Congress only wanted the recordings “to chop them up” and use them for political purposes.
Executive privilege gives presidents the right to keep information from the courts, Congress and the public to protect the confidentiality of their decision-making, though it can be challenged in court.
Garland has defended the Justice Department, saying it has gone to extraordinary lengths to provide information to lawmakers.
“There have been a series of unprecedented and frankly unfounded attacks on the Justice Department,” Garland said in a press conference last month. “This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files, is just most recent.”
What is contempt of Congress?
Contempt of Congress is an enforcement mechanism for lawmakers that is enshrined in the legal code.
Under U.S. law, it is considered a misdemeanor criminal offense to willfully fail to comply with a valid congressional subpoena for producing documents or testimony, according to a report from the nonpartisan Congressional Research Service.
But what amounts to contempt of Congress is often in dispute, which means that a contempt vote by the House or the Senate is only the beginning of a potential legal process. It is up to prosecutors to turn a contempt resolution into a case, and it is up to a jury to decide whether a person is guilty of crime. Some contempt resolutions are never acted upon.
What is the process for holding someone in contempt?
Contempt usually begins with the introduction of a resolution in the committee of jurisdiction. In the case of Garland, the House Judiciary and Oversight & Accountability committees advanced dual contempt reports out of the committees in back-to-back party line votes.
The next step is for the full House of Representatives to adopt the report through a majority vote. If it passes, a referral is sent to the Justice Department. The Senate does not have to approve the resolution, as each chamber of Congress has its own enforcement power.
The last time an attorney general was held in contempt was in 2019. That was when the Democratically controlled House voted to make then-Attorney General Bill Barr the second sitting Cabinet member to be held in contempt of Congress for refusing to turn over documents related to a special counsel investigation into Trump, a Republican.
Years before that, during the administration of President Barack Obama, a Democrat, then-Attorney General Eric Holder was held in contempt related to the gun-running operation known as Operation Fast and Furious.
In each of those instances, the Justice Department took no action against the attorney general.
What are the penalties for being held in contempt?
Contempt votes have become more frequent in recent years, with serious repercussions for the defendants.
If the Justice Department decides to take up the contempt resolution and pursue a case, violations can be punishable by a fine of up $100,000 and imprisonment “for not less than one month nor more than twelve months," according to the CRS.
Bannon, a longtime ally and aide of Trump, was held in contempt of Congress in 2021 for refusing to comply with a subpoena from the House Jan. 6 committee and was convicted by a jury in the summer of 2022. Bannon was recently ordered to report to prison by July 1 to serve a four-month sentence.
Navarro, a Trump trade adviser, was also convicted of contempt of Congress after defying the Jan. 6 panel. He reported to prison in March to serve his four-month sentence.
Even for those who escape prosecution, a contempt of Congress resolution remains a mark on their record.
