Aggressive legislative oversight of the executive branch is a part of the nation’s system of checks and balances, and Congress has a right to pursue it, even when the motivation is arguably partisan. As journalists, we’re certainly curious to hear the conversations that prompted Justice Department special counsel Robert K. Hur to describe 81-year-old President Biden as seeming like “a sympathetic, well-meaning, elderly man with a poor memory.”
But House Republicans went well past the line when they voted this week to hold Attorney General Merrick Garland in contempt of Congress for refusing to turn over audio recordings of the president’s sit-down interview with Mr. Hur. Mr. Garland sought in good faith to accommodate congressional demands. He released a 258-page interview transcript and an unredacted version of Mr. Hur’s 345-page report, though he was not required to release either. Mr. Garland allowed Mr. Hur to testify on Capitol Hill for more than five hours about why he didn’t think he could convince a jury beyond a reasonable doubt that Mr. Biden willfully violated the laws on handling classified material.
The attorney general has plausible reasons to resist going further. The Justice Department’s Office of Legal Counsel says releasing recordings of interviews with people not charged with crimes would chill future high-profile criminal investigations, especially “where the voluntary cooperation of White House officials is exceedingly important.” At Mr. Garland’s request, Mr. Biden invoked executive privilege to block release of the tapes — providing legal cover against any criminal referral. President George W. Bush similarly claimed executive privilege in 2008 when Democratic lawmakers sought notes from special counsel Patrick Fitzgerald’s interviews with Vice President Dick Cheney about the leak of a CIA officer’s identity.
Mr. Biden deserves credit for cooperating with Mr. Hur’s probe. He gave a two-day interview last October just after Hamas attacked Israel. By contrast, then-President Donald Trump refused to sit down with then-special counsel Robert S. Mueller III, instead only answering written questions about activities before he took office. It’s also commendable that Mr. Biden didn’t invoke executive privilege to block the release of Mr. Hur’s report or the transcript.
The irony is that Mr. Garland, who still has a judicial temperament despite no longer sitting on the bench, is arguably the least partisan member of the Cabinet. He appointed Mr. Hur, a Republican, to investigate Mr. Biden. He also gave special counsel powers to David C. Weiss to pursue criminal cases against Hunter Biden. Federal prosecutors won three felony convictions against the president’s son just a day before the House held Mr. Garland in contempt for supposedly protecting the president. Mr. Garland describes the contempt vote as “the most recent in a long line of attacks” on the independence of his department.
He fears that the demonization of law enforcement by Mr. Trump and his allies puts investigators and prosecutors at risk. On Thursday, for example, federal officials charged a Texas man with threatening to kidnap and kill an FBI agent involved in the Hunter Biden case. In this heated campaign season, elected officials in all branches of government need to look for ways to lower the temperature.
