The Republican-led House of Representatives is expected to vote Wednesday to hold Attorney General Merrick Garland in contempt of Congress, escalating a tug-of-war over audiotapes of President Biden’s interview with a special prosecutor.

That federal criminal investigation ended this year with no charges against Biden for mishandling classified information, in part because special counsel Robert Hur concluded a jury would likely view the president as a “sympathetic, well-meaning elderly man with a poor memory.”

Read the special counsel’s report on Biden’s handling of classified documents

Top Republican leaders worked Tuesday night to count votes to ensure the measure could pass in the narrowly divided chamber. If Republicans are successful, Garland will become the third attorney general to be reprimanded by the House for defying a congressional subpoena. But the consequences are likely to end there, since Biden has asserted executive privilege over the tapes, giving Garland legal protection from any further investigation.

House Judiciary Committee Chairman Jim Jordan, R-Ohio, told NPR that he expected the House to approve the contempt resolutions and said he hasn’t heard any reservations about them from fellow Republicans.

Democrats pointed out that Jordan, who is a chief advocate of holding Garland in contempt, declined to cooperate with the House January 6 committee’s investigation in 2022. He publicly admitted that he was discussing a plan to contest the electoral votes in several states with the Trump White House. Jordan told NPR that he never told the committee he wouldn’t appear and maintained he negotiated with it. “This is different — Merrick Garland says you ain’t getting it,” referring to the audiotapes, adding, “There’s no negotiating whatsoever.”

He and other House Republicans argued Tuesday that the Justice Department waived privilege over withholding the tapes once it gave the committees the transcripts of the interviews with Biden.

Democrats and the Justice Department reject the premise of the contempt proceedings

The attorney general has said he engaged in extraordinary accommodation with lawmakers. Special counsel Hur provided five hours of congressional testimony about his findings. And the Justice Department turned over written transcripts of Biden’s interview, as well as correspondence with lawyers for Biden and the White House.

Garland sought to cast the contempt proceedings as part of a series of attacks against the Justice Department and its career employees by partisans intent on making political points.

“Disagreements about politics are good for our democracy,” Garland wrote in an opinion piece this week. “They are normal. But using conspiracy theories, falsehoods, violence and threats of violence to affect political outcomes is not normal. The short-term political benefits of those tactics will never make up for the long-term cost to our country.”

Rep. Jerry Nadler of New York, the top Democrat on the House Judiciary Committee, furthered that argument Tuesday in a hearing on the contempt measure.

“This isn’t really about a policy disagreement with the DOJ. This is about feeding the MAGA base after 18 months of investigation that have produced failure after failure,” Nadler said.

Nadler also maintained that the audiotapes of the president could be easily manipulated by House Republicans, pointing to a case of a witness who appeared before the panel last year that resulted in threats.

Asked whether Democrats will be unified against the contempt resolution, Rep Hakeem Jeffries, the top House Democrat, told NPR that he expected the “overwhelming majority” of Democrats to vote no. He called the effort “frivolous, unconscionable, unnecessary and un-American.”

Republicans say Garland must provide more information

But leaders of the House Oversight and Judiciary committees said they had legitimate reasons to demand the tapes of Biden’s interview, reasoning that it could help advance a stalled impeachment probe against Biden and assess the need for new legislation to protect sensitive or classified materials.

The tapes also would help make their case that Biden, 81, is losing his faculties, a pillar of the Republican case against Biden in the 2024 presidential election.

“If the attorney general wants to defy Congress and not produce the audio recordings, he will face consequences for those actions,” House Oversight Committee Chairman James Comer, R-Ky., declared recently.

Biden’s decision to invoke executive privilege not only insulates his attorney general from a criminal contempt probe but also prevents the audio from appearing in campaign ads.

“Quite frankly, the White House has every reason to be concerned about the audio being released, because it could be chopped up and used in various ways in a political campaign in an election year to make the president look and sound bad,” George Mason University political scientist Mark Rozell told NPR.

Biden blocks the release of recordings of his classified documents interview

The Heritage Foundation and several media organizations are suing for access to those tapes under the Freedom of Information Act, but it’s not clear they will meet with success before the November election.

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