Washington — Two Republican-led House committees are considering a contempt of Congress resolution against Attorney General Merrick Garland Thursday for defying their request for audio recordings from the classified documents case against President Biden.

The Justice Department said Thursday morning that the president was asserting executive privilege over the recordings, adding a new wrinkle to the dispute with Congress.

The House Judiciary and Oversight committees were slated to move forward with marking up the contempt resolution over the department's refusal to hand over the audio of former special counsel Robert Hur's October 2023 interview with the president, which came as part of his investigation into Mr. Biden's handling of classified documents.

Hur wrapped the yearlong investigation months ago, releasing a highly anticipated report in February. While Hur's report ultimately vindicated the president, it included some highly critical conclusions. The committees subpoenaed the Justice Department for the audio recording and other materials from the probe. The Judiciary Committee was meeting Thursday morning, while the Oversight Committee was set to meet Thursday night.

"This morning we get an 11th hour invocation of executive privilege," Judiciary Committee Chairman Jim Jordan said Thursday, noting that the assertion does not change that the attorney general has not complied with the subpoena. "President Biden is asserting executive privilege for the same reason we need the audio recordings — they offer a unique perspective."

Biden asserts privilege

In a letter to the committee chairmen obtained by CBS News, a top Justice Department official revealed that Mr. Biden asserted executive privilege over the recordings of Hur's interviews with the president and the ghostwriter of his book. That assertion came at the recommendation of the Justice Department, which urged the committees to "avoid unnecessary and warranted conflict" in voting to advance the contempt resolution today. 

"While our cooperation with Congress has been extraordinary, we also have a responsibility to safeguard the confidentiality of law enforcement files where disclosure would jeopardize future investigations," Assistant Attorney General Carlos Uriarte wrote Thursday. "The Attorney General must draw a line that safeguards the Department from improper political influence and protects our principles, our law enforcement work, and the people who carry out that work independently." 

The Justice Department contends that it "made substantial efforts" to respond to the congressional committees' requests for information and materials following Hur's investigation into the president's past handling of classified records, adding they had already handed over the transcripts of the two interviews of which the audio recordings are now at issue. 

The committee leaders have pressed forward, arguing that the audio recordings "are important to our investigation of President Biden's willful retention of classified documents and his fitness to be President of the United States."

"There must be consequences for refusing to comply with lawful congressional subpoenas and we will move to hold Attorney General Garland in contempt of Congress," Oversight Committee Chairman James Comer, a Kentucky Republican, said in a statement earlier this week. 

Reports from the committees detailed how they subpoenaed the audio recording and other records in part to determine whether "sufficient grounds exist to draft articles of impeachment against President Biden," arguing that the subpoenas issued to the Justice Department are part of the House's impeachment inquiry. 

"The Department has invoked no constitutional or legal privilege to support withholding this material," the reports said. "Its failure to fully comply with the Committees' subpoenas has hindered the House's ability to adequately conduct oversight over Special Counsel Hur regarding his investigative findings and the President's retention and disclosure of classified materials and impeded the Committees' impeachment inquiry."

The reports argued that the audio recordings of the interview are of "superior evidentiary value," saying the transcripts "do not reflect important verbal context, such as tone or tenor, or nonverbal context, such as pauses or pace of delivery."

But the president's assertion of executive privilege adds a new dynamic to the mix. According to another letter from the attorney general to Mr. Biden obtained by CBS News, the legal basis came from the Justice Department's Office of Legal Counsel and was agreed to by Garland himself. 

"The Committees' needs are plainly insufficient to outweigh the deleterious effects that production of the recordings would have on the integrity and effectiveness of similar law enforcement investigations in the future," Garland wrote in a letter to the president dated May 15. "I therefore respectfully request that you assert executive privilege over the subpoenaed recordings. I also request that you make a protective assertion of executive privilege with respect to any other materials responsive to the subpoenas that have not already been produced." 

The attorney general wrote that he feared turning over the tapes might risk chilling the cooperation of witnesses in future investigations. And the White House Counsel's Office argued that the Republican committee leaders would likely "chop up" and "distort" the recordings "for partisan political purposes" should they obtain them. 

"Demanding such sensitive and constitutionally-protected law enforcement materials from the Executive Branch because you want to manipulate them for potential political gain is inappropriate," Edward Siskel, the White House counsel, wrote Thursday. 

With the markups on Thursday, the committees are set to vote to kickstart proceedings to hold Garland in contempt of Congress, a major escalation in the back and forth so far. Should the issue advance out of the committees, it would be brought before the full House.

The resolution instructs House Speaker Mike Johnson to certify that Garland defied the subpoena and refer the matter to the U.S. attorney in Washington for possible prosecution, which would be highly unlikely.

If the GOP-controlled chamber votes to hold Garland in contempt, he would be the latest in a short list of Cabinet members who have faced the same fate. In 2012, former Attorney General Eric Holder was held in contempt, as was former attorney general Bill Barr in 2019. But neither faced criminal charges from their own Justice Departments.

The Hur report

In a 345-page report released in February, Hur outlined Mr. Biden's handling of classified documents that he kept in his possession following his time as vice president. The special counsel said that the president's conduct posed "serious risks to national security," but he determined that pursuing criminal charges was "not the proper remedy." The evidence did not establish beyond a reasonable doubt that Mr. Biden violated the law, Hur ultimately concluded.

Even so, Hur's report also included a series of observations about the president's memory that became fodder for GOP opposition in the weeks after its release. Among the most damning was an allegation that Mr. Biden could not recall when his son, Beau Biden, died. The transcript of the interview showed that the president struggled to identify the year, but did correctly name the month and date.

Hur testified in March before the House Judiciary Committee, where he faced criticism from both sides of the aisle. At the time, Republicans argued the decision not to recommend charges against Mr. Biden was evidence of a two-tiered justice system, given the charges that Trump faces for allegedly retaining classified material. And Democrats criticized the former special counsel's characterization of Mr. Biden's memory was inaccurate and unnecessary. 

When asked whether Congress should have access to the recordings, Hur said "it is not for me to weigh into what information Congress should or should not have." He added that "the audio recordings were part of the evidence, of course, that I considered in coming to my conclusions."

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  • Joe Biden
  • Merrick Garland
  • Robert Hur
Kaia Hubbard

Kaia Hubbard is a politics reporter for CBS News Digital based in Washington, D.C.

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