The GOP's latest headache: A push to arrest Merrick Garland

This House GOP is about to add another item to their long list of abnormal events: Voting to hold Attorney General Merrick Garland in “inherent contempt.”

Rep. Anna Paulina Luna (R-Fla.) said she will force a vote this week on the rarely used tool, which would direct the House sergeant at arms to take Garland into custody.

House Republicans have already voted to hold Garland in contempt of Congress — a still-uncommon but more frequently used weapon in the chamber’s arsenal — over his refusal to hand over audio of President Joe Biden’s interview with former special counsel Robert Hur. But the Justice Department quickly disclosed that, in line with long-standing policy, it won’t prosecute Garland for refusing to turn over records that fall under executive privilege.

Luna’s resolution is expected to come up under House rules that allow her to force a vote without GOP leadership’s approval. But it faces roadblocks to actually passing: Democrats, or even Luna’s own GOP colleagues, will likely move to table it or send it to committee. Either step would effectively block it.

Leadership has its own plans for what’s next on Garland; Speaker Mike Johnson said the House will instead take the fight over the Hur-Biden audio recordings to court. But that legal battle, Luna has lamented, would likely drag on for months and is unlikely to wrap before the November election.

“It is imperative that Congress uses its inherent contempt powers and instructs the Sergeant at Arms to bring Attorney General Garland to the House for questioning and compel him to produce the requested evidence,” Luna wrote to her colleagues in a letter on Monday.

“This power is not a mere formality, but a vital tool for us to carry out our legislative responsibilities. It is not enough to issue a subpoena; we must also have the power to enforce it,” she added in the letter, a copy of which was obtained by POLITICO.

Here’s a few things to know about inherent contempt ahead of that vote:

UNUSED FOR ALMOST 90 YEARS

It would be the first time since 1935 that Congress has used the now archaic tool, though House Democrats mulled reviving it during the Trump administration to levy fines against individuals who didn’t comply with subpoenas. Then-Rep. Steve Stockman (R-Texas) also introduced a resolution in 2014 that would have allowed the House sergeant at arms to take former IRS official Lois Lerner into custody but the proposal was never taken up.

Underscoring how atypical the move is in modern history, none of the roughly 20 House Republicans surveyed by POLITICO, including members of the two committees who spearheaded the Garland contempt effort and vulnerable frontliners, knew how inherent contempt worked or what it is.

While Garland made calls to members ahead of the previous contempt vote, he has not called lawmakers on inherent contempt, one person familiar with the outreach told POLITICO.

VOTE LIKELY TO FAIL

Luna would need near unanimity within her conference to actually adopt the resolution, given what is expected to be unanimous Democratic opposition. That’s an uphill battle.

One Republican, Rep. David Joyce (R-Ohio), already opposed holding Garland in contempt, and with leadership leaning into the lawsuit route, Luna is likely to face broader skepticism within the conference.

But that tough whip operation doesn’t seem to be deterring her. In the Florida Republican’s Monday pitch to her colleagues, she said that the “urgency of this situation cannot be overstated” and that she looks forward to “each of you voting in favor of it.”

WHERE GARLAND COULD BE HELD

Luna’s resolution requires that Garland be brought “before the bar of the House of Representatives'' to answer questions and that he be kept “in custody to await the further order of the House of Representatives.” One GOP lawmaker questioned, under the scenario, where the House would hold Garland and if there was actually a much-rumored Capitol jail.

There isn’t, to be clear. But the Capitol Police have holding facilities at their headquarters — and Luna noted in her letter they could also hold him in the Capitol building itself.

ANOTHER DRAGGED-OUT PROCESS

While Luna has argued that this would be a more efficient process than a court case, experts stress that the inherent contempt process could take months.

Experts on House process and procedure warn that an inherent contempt vote could trigger months and months of deliberations, from hashing out separation of powers authorities governing the initial arrest to a makeshift trial on the House floor. Adding in another curveball, Garland has a security detail due to his attorney general title, and it’s unclear how bringing a sitting cabinet official into custody would play out, particularly given Biden’s assertion of executive privilege.

“Inherent contempt has been described as ‘unseemly,’ cumbersome, time-consuming, and relatively ineffective, especially for a modern Congress with a heavy legislative workload that would be interrupted by a trial at the bar,” according to a report on the process and history by the nonpartisan Congressional Research Service.