Late Wednesday, June 12, Attorney General Merrick Garland was on the receiving end of a contempt of Congress vote, making him the third such officeholder to face the wrath of the House. In a 216 to 207, mostly party-line vote, GOP lawmakers held Garland in contempt for refusing to hand over audio files related to President Joe Biden’s interview with Special Counsel Robert Hur. While the AG cites politicization as the impetus for this action, the real question concerns why he would refuse to comply in the first place.
Garland Refuses to Budge
Special Counsel Hur oversaw the investigation into Biden’s mishandling of classified documents. The process saw the commander-in-chief sit down for two interviews last October. Despite myriad news reports suggesting the president was exonerated of wrongdoing, Mr. Hur actually determined that while “wilful” mishandling took place, a jury may not convict Biden and that he would come across as an “elderly man with a poor memory.”
The transcripts were released, and the left-leaning Fourth Estate declared that such evidence of cognitive decline was not apparent. Indeed, Mr. Biden’s own lawyers decried the report, calling it an unfair and unprofessional observation. Surely, if such a mischaracterization took place, those who disagree would want the audio published widely. What better way to dispel a falsehood than to disinfect with sunlight?
AG Garland, however, advised that the president should claim executive privilege over the recordings.
Something to Hide?
There are two arguments in play for the refusal to comply with the House’s subpoena. The first is that Mr. Garland claims he can see no legislative purpose in releasing the recordings. The other is wildly speculative fearmongering that the audio may be manipulated by artificial intelligence and promote disinformation.
In a novel legal filing, the Department of Justice claimed AI tampering was a sound reason for the withholding, writing:
“The passage of time and advancements in audio, artificial intelligence, and ‘deep fake’ technologies only amplify concerns about malicious manipulation of audio files. If the audio recording is released here, it is easy to foresee that it could be improperly altered, and that the altered file could be passed off as an authentic recording and widely distributed.
“A malicious actor could slow down the speed of the recording or insert words that President Biden did not say or delete words that he did say… That problem is exacerbated by the fact that there is now widely available technology that can be used to create entirely different audio ‘deepfakes’ based on a recording.”
There appear to be a few problems with this line of argument. First, as the transcript is widely available, the insertion of words would be easily dealt with. Unless, of course, the original transcript had already been edited in such a way. This is something that the White House comms team has done on numerous occasions to “tidy up” Mr. Biden’s speeches. However, this is unlikely to be something the DOJ would do.
Another aspect to consider is that if the DOJ’s argument passes legal muster, what is to stop all audio and video footage of any president being withheld under the same rationale?
So, what of the legislative purpose argument? It is worth noting that the government agencies fall under congressional oversight. It is not for a department to determine what Congress should and should not be investigating. In fact, lawmakers have a very real and practical interest in discovering whether Mr. Hur’s written report tells the full story – especially as the Biden administration has called it a complete mischaracterization.
Next Steps for Garland
Despite the contempt charge, the head of the DOJ has little to worry about. When AGs Bill Barr (under Donald Trump) and Eric Holder (under Barack Obama) were held in contempt, the US Attorney in Washington, DC, declined to pursue charges.
AG Garland responded to the contempt of Congress vote in a statement, accusing House Republicans of turning “a serious congressional authority into a partisan weapon." He continued:
"Today’s vote disregards the constitutional separation of powers, the Justice Department’s need to protect its investigations, and the substantial amount of information we have provided to the Committees."
This refutation comes hot on the heels of AG Garland writing an op-ed in the pages of Washington, DC’s most notable newspaper on June 11. In his article, he claimed: “In recent weeks, we have seen an escalation of attacks that go far beyond public scrutiny, criticism, and legitimate and necessary oversight of our work. They are baseless, personal and dangerous.”
“Continued unfounded attacks against the Justice Department’s employees are dangerous for people’s safety,” he wrote. “They are dangerous for our democracy. This must stop.”
While this was certainly a political powerplay by the House GOP, it would be a stretch of the imagination to believe Mr. Garland’s accusation that lawmakers seeking to obtain an audio file that would determine if Mr. Biden’s lawyers' claim of mischaracterization was true or false is a danger to “our democracy.” It may well turn out to be, however, a threat to Mr. Biden’s chances in the 2024 election.
