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DOJ won’t prosecute Merrick Garland for contempt, despite the GOP vote

Attorney General Merrick Garland will not be prosecuted for contempt of Congress because his refusal to turn over audio of President Joe Biden’s interview in his classified documents case “did not constitute a crime,” the Justice Department said Friday.

In a letter to House Speaker Mike Johnson, a Justice Department official cited the department’s longstanding policy not to prosecute officials who don’t comply with subpoenas because of a president’s claim of executive privilege.

The Democratic president asserted executive privilege last month, blocking the release of the audio, which the White House says Republicans want only for political purposes.

The Justice Department’s decision comes days after the House voted along party lines to hold Garland in contempt of Congress.

Republicans were incensed when special counsel Robert Hur declined to prosecute Biden over his handling of classified documents and quickly opened an investigation. GOP lawmakers—led by Reps. Jim Jordan and James Comer—sent a subpoena for audio of Hur’s interviews with Biden during the spring. But the Justice Department only turned over some of the records, leaving out audio of the interview with the president.

The attorney general has said the Justice Department has gone to extraordinary lengths to provide information to the lawmakers about Hur’s investigation. However, Garland has said releasing the audio could jeopardize future sensitive and high-profile investigations by making future witnesses concerned about cooperating with authorities.

Executive privilege protects a president’s ability to obtain candid counsel from his advisers without fear of immediate public disclosure and protects confidential communications relating to official responsibilities.

Garland is the third attorney general to be held in contempt of Congress.

Before Garland, the last attorney general held in contempt was Bill Barr in 2019. That was when the Democratically controlled House voted to issue a referral against Barr after he refused to turn over documents related to a special counsel investigation into Trump.

Years before that, 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.

The special counsel in Biden’s case, Hur, spent a year investigating the president’s improper retention of classified documents, from his time as a senator and as vice president. Hur said he found insufficient evidence to successfully prosecute a case in court.

A transcript of the Hur interview showed Biden struggling to recall some dates and occasionally confusing some details—something longtime aides say he’s done for years in both public and private—but otherwise showing deep recall in other areas. Biden and his aides are particularly sensitive to questions about his age. At 81, he’s the oldest-ever president, and he’s seeking another four-year term.

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