Republicans fail to hold Merrick Garland in inherent contempt over Biden audio files

(WASHINGTON) — A Republican congresswoman’s effort to hold Attorney General Merrick Garland in inherent contempt for refusing to turn over audio tapes of special counsel Robert Hur’s interview with President Joe Biden failed on Thursday.

Florida Rep. Anna Paulina Luna’s measure was rejected in a 204 to 210 vote.

Four Republicans — Reps. John Duarte, David Joyce, Michael Turner and Tom McClintock — voted with Democrats to take down the measure. There were a number of Republicans absent from the vote.

The resolution, which was introduced as privileged on the House floor Wednesday night by Rep. Luna, aimed to fine Garland $10,000 per day until he complied with a congressional subpoena.

The vote came after two Democratic efforts to table, or effectively kill, the measure late Wednesday were unsuccessful. It also comes after House Republican leaders urged Rep. Luna at a closed-door GOP conference meeting earlier this week to not bring it up for a vote this week.

But Rep. Luna forged ahead with her effort anyway with the blessing of former President Donald Trump.

A Department of Justice spokesperson, ahead of the vote, said, “This is unconstitutional. We are confident our arguments would prevail in court.”

House Republicans voted on June 12 to hold Garland in contempt of Congress over the Biden-Hur audio recordings. Just one Republican, Rep. David Joyce of Ohio, voted against that contempt effort. A few weeks later, on July 1, the House Judiciary sued the Department of Justice to obtain the audio.

The Justice Department declined to prosecute Garland for contempt of Congress, citing what it called longstanding policy against prosecuting an attorney general. House Speaker Mike Johnson, in response, said the House would “move to enforce the subpoena of Attorney General Garland in federal court.”

What is inherent contempt?

According to the Congressional Research Service, the inherent contempt power can involve the arrest of the individual who fails to comply with a subpoena or a monetary fine.

“Such a fine would potentially have the advantage of avoiding a court proceeding on habeas corpus grounds, as the contemnor would never be jailed or detained,” the report states.

History of inherent contempt

Inherent contempt was last in the news when House Democrats threatened to hold Trump administration officials accountable as they sought Trump’s tax records.

At the time, then-House Speaker Nancy Pelosi, much like Speaker Johnson today, urged patience but left it on the table as an option to keep readily available.

“So, in inherent contempt you send a subpoena, they don’t honor it then hold them in contempt and if they do not comply then you can fine them,” Pelosi explained in May 2019. “And then you can hold them accountable for the money that you fine them.”

The inherent contempt process has not been successfully executed in Congress since 1934 — when the Senate arrested William MacCracken Jr., a Washington aviation industry lawyer, for refusing to cooperate with a Senate investigation. This case went to the Supreme Court, which ruled in 1935 that Congress had acted constitutionally.

ABC News’ Alexander Mallin contributed to this report.