But House Republicans went well past the line when they voted this week to hold Attorney General Merrick Garland in contempt of Congress for refusing to turn over audio recordings of the president’s sit-down interview with Mr. Hur.
Mr. Garland sought in good faith to accommodate congressional demands. He released a 258-page interview transcript and an unredacted version of Mr. Hur’s 345-page report, though he was not required to release either. Mr. Garland allowed Mr. Hur to testify on Capitol Hill for more than five hours about why he didn’t think he could convince a jury beyond a reasonable doubt that Mr. Biden willfully violated the laws on handling classified material.
The attorney general has plausible reasons to resist going further. The Justice Department’s Office of Legal Counsel says releasing recordings of interviews with people not charged with crimes would chill future high-profile criminal investigations, especially “where the voluntary cooperation of White House officials is exceedingly important.” At Mr. Garland’s request, Mr. Biden invoked executive privilege to block release of the tapes — providing legal cover against any criminal referral. President George W. Bush similarly claimed executive privilege in 2008 when Democratic lawmakers sought notes from special counsel Patrick Fitzgerald’s interviews with Vice President Dick Cheney about the leak of a CIA officer’s identity.
Mr. Biden deserves credit for cooperating with Mr. Hur’s probe. He gave a two-day interview last October just after Hamas attacked Israel. By contrast, then-President Donald Trump refused to sit down with then-special counsel Robert S. Mueller III, instead only answering written questions about activities before he took office. It’s also commendable that Mr. Biden didn’t invoke executive privilege to block the release of Mr. Hur’s report or the transcript.
Showing that no good deed goes unpunished, Republicans now argue that Mr. Garland’s release of the transcript waived executive privilege for the audio. But Mr. Garland needs to draw a line somewhere, balancing the competing interests of disclosure and fairness. Perhaps the Justice Department should have offered to allow Republican lawmakers to listen to the tape under secure conditions, with no recording allowed. If the president’s critics on Capitol Hill are genuinely interested in the facts — as opposed to, say, the release of embarrassing audio clips — that’s the kind of compromise that might have worked.
Every Democrat, and one Republican, voted against holding Mr. Garland in contempt on Wednesday. Rep. David Joyce (R-Ohio) said the attorney general “basically complied” with the House’s subpoena. “As a former prosecutor, I cannot in good conscience support a resolution that would further politicize our judicial system to score political points,” said Mr. Joyce. “Enough is enough.”
Symbolic as the congressional contempt vote is, given that it refers the matter to Mr. Garland’s own department, which declined on Friday to prosecute the attorney general, the move cheapens what should be a serious tool for dealing with true administration stonewalling. House Republicans held Attorney General Eric Holder in contempt in 2012 for refusing to turn over records related to “Fast and Furious,” a botched gun-tracking operation. House Democrats held Attorney General William P. Barr in contempt five years ago for holding on to documents related to the Trump administration’s efforts to add a citizenship question to the 2020 Census.
The irony is that Mr. Garland, who still has a judicial temperament despite no longer sitting on the bench, is arguably the least partisan member of the Cabinet. He appointed Mr. Hur, a Republican, to investigate Mr. Biden. He also gave special counsel powers to David C. Weiss to pursue criminal cases against Hunter Biden. Federal prosecutors won three felony convictions against the president’s son just a day before the House held Mr. Garland in contempt for supposedly protecting the president.
Mr. Garland describes the contempt vote as “the most recent in a long line of attacks” on the independence of his department. He fears that the demonization of law enforcement by Mr. Trump and his allies puts investigators and prosecutors at risk. On Thursday, for example, federal officials charged a Texas man with threatening to kidnap and kill an FBI agent involved in the Hunter Biden case. In this heated campaign season, elected officials in all branches of government need to look for ways to lower the temperature.
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