Inherent contempt and a lawsuit: House GOP plots next steps against Garland

House Republicans are eyeing a court fight as their next step in their ongoing standoff with the Justice Department.

Republicans on the Judiciary and Oversight committees voted on Thursday to advance resolutions holding Attorney General Merrick Garland in contempt for refusing to hand over the audio of President Joe Biden’s interview with former special counsel Robert Hur. Hours earlier, Biden effectively headed them off by asserting executive privilege over that audio — bringing the chances that Garland would face criminal charges for defying subpoenas to near zero.

But they are hinting they already have a back up plan: Duking it out in the courts.

“I think that’s very likely,” Judiciary Chair Jim Jordan (R-Ohio) said Friday in a brief interview about filing a lawsuit.

Oversight Chair James Comer (R-Ky.) added that House GOP attorneys are skeptical that Biden’s executive privilege claim will hold up in court, since the Justice Department did turn over the transcript.

“Hopefully we’ll find out if that’ll hold up in court very soon,” Comer said.

There’s an obvious drawback to Republicans going the judicial route: A lawsuit would drag out for months, if not longer. Plus, there’s no guarantee they will win and Republicans are at risk of losing the House majority in the November election.

At least one other GOP lawmaker wants to try a different route, as well. Rep. Anna Paulina Luna (R-Fla.) said during the unruly Oversight meeting on Thursday night that absent DOJ action she would try to force a vote within 10 days on “inherent contempt” against Garland. It’s a rarely used tool that would let the House sergeant at arms take Garland into custody for a congressional proceeding.

“I fully intend in 10 days after this passes out of committee to hold … Garland in inherent contempt of Congress if the Department of Justice doesn't do its job,” she said during the committee meeting. She reiterated that pledge to reporters Friday morning.

Garland hasn’t weighed in on that possibility, and neither have most other House Republicans. But the attorney general did preemptively push back on the GOP’s likely legal argument in a letter he sent to Biden dated Wednesday.

“The department’s disclosure of the transcripts of the interviews does not constitute a waiver and does not preclude an assertion of privilege with respect to the audio recordings,” Garland wrote, adding that “interpreting the production of the transcripts as a waiver of privilege would incentivize less Executive Branch cooperation and broader privilege assertions.”

House GOP leadership hasn’t yet said if, or when, it will hold a vote on the floor on the two contempt resolutions, where they will need near GOP unity. As of early Friday afternoon, neither resolution has been slated to come up next week — though leadership hasn’t yet released the official schedule and can easily add more items.