Rep. Anna Paulina Luna, R-Fla., is planning to force a vote on directing the House Sergeant-at-Arms to arrest Attorney General Merrick Garland sometime this week.
Luna is sending a letter around to fellow House Republicans on Monday arguing that the Department of Justice (DOJ) undermined Congress by refusing to act on the contempt resolution passed by the GOP majority earlier this month.
‘The only option to ensure compliance with our subpoena is to use our constitutional authority of inherent contempt,’ Luna said. ‘In the next few days, I will call up my resolution holding Attorney General Merrick Garland in inherent contempt of Congress, and I look forward to each of you voting in favor of it.’
‘Our ability to legislate effectively and fulfill our constitutional duties is at stake. We must act now to protect the integrity and independence of the legislative branch.’
Inherent contempt differs from the criminal contempt resolution passed on June 12. The latter referred Garland to his own department for criminal charges. However, inherent contempt, if passed, could force Garland to stand trial before the House of Representatives and, if found guilty, would lead to his detention by the House Sergeant-at-Arms.
‘This is a broad power that courts have recognized as necessary for Congress to fulfill its legislative functions. Under inherent contempt, the individual is brought before the bar of the House by the Sergeant at Arms, tried by the body, and can then be detained either in the Capitol or in D.C.,’ Luna wrote.
She said it ‘demonstrates the seriousness with which Congress views non-compliance and the potential consequences for those who refuse to cooperate.’
House Republican leaders moved to hold Garland in contempt for refusing to turn over audio recordings of special counsel Robert Hur’s interviews with President Biden, despite a congressional subpoena.
Republicans seeking the audio recording argued it would provide critical context about Biden’s state of mind. Democrats, meanwhile, have dismissed the request as a partisan attempt to politicize the DOJ.
The DOJ said it would not prosecute Garland because he was acting on Biden’s own executive privilege claims over the interview tapes.
‘The Department of Justice and the attorney general cannot be the ultimate deciders of whether or not a congressional subpoena is enforced. If Congress allows this to happen, we risk being subordinated to the attorney general and being completely neutered in our ability to legislate,’ Luna argued. ‘Why would anyone from the executive branch comply with our demands for information if the enforcement of those demands relies on the actions of another department in its own branch?’
Congress has not invoked its inherent contempt power since 1934, when it resulted in Washington lawyer William MacCracken getting a 10-day jail sentence for not sufficiently complying with a Senate subpoena. The case went all the way to the Supreme Court, which backed Congress’ right to exercise its inherent contempt powers in its February 1935 decision in Jurney v. MacCracken.
To force a vote on her resolution, Luna will have to deem it ‘privileged’ – meaning House leaders will have two legislative days to act on it.
It is not immediately clear if the effort will succeed, however. The resolution will likely get no support from Democrats, and only a few Republicans would need to vote to table the measure, which would kill it before a House-wide vote.
The House-wide vote on holding Garland in contempt got support from every Republican save Rep. David Joyce, R-Ohio, who opposed it over concerns it would politicize the justice system.
Inherent contempt has never been used on a Cabinet official nor on a matter over which the president has exerted executive privilege. There are also some questions about logistics, with no formal roadmap for inherent contempt proceedings and Garland having his own FBI security detail.
The DOJ declined to comment on Luna’s letter.