Opinion: Congress has no case against Merrick Garland

Opinion by David Orentlicher

(CNN) — Attorney General Merrick Garland’s appearance before the House Judiciary Committee Tuesday comes amidst criticism from Republicans for refusing to hand over audiotapes of President Joe Biden’s interviews with Special Counsel Robert Hur after Biden invoked executive privilege to keep them private. A House committee has already found Garland in contempt for withholding the tapes and a full House vote could come soon.

Hur had investigated Biden’s mishandling of classified documents from his time as vice president and concluded that criminal charges were not warranted. While Biden authorized the release of written transcripts of his interviews with Hur, made public earlier this year, he objected when Congress subpoenaed him for the audiotapes.

Hur’s report of his investigation painted an unflattering picture of the president when Hur explained that if he had decided to prosecute Biden, the jury would likely see him as “a sympathetic, well-meaning elderly man with a poor memory,” and would give him the benefit of the doubt. In response, Biden released the transcripts but withheld the audiotapes. CNN is suing to obtain the audiotapes, arguing that transcripts “are no substitute for recordings.”

While Garland’s claim of executive privilege on behalf of Biden is not airtight — having released the transcripts, it’s more difficult for Biden to argue that the audiotapes should remain privileged — the Judiciary Committee’s subpoena of the tapes rests on even shakier ground.

One might wonder whether Biden is trying to have it both ways on questions of presidential protections. On the one hand, he’s asserting a strong presidential privilege when it comes to access to his information. On the other hand, he’s rejected former President Donald Trump’s claims of executive privilege in the classified documents case involving papers that Trump took with him from the White House to his home in Mar-a-Lago, Florida, after leaving the presidency. That case is currently in pretrial proceedings in a federal district court in Miami with no date yet set for a trial.

While it might seem hypocritical that Biden is seeking greater protection for himself than for Trump, there are good reasons to distinguish their situations. In particular, Trump, claiming that many of the documents are personal rather than official, hopes to be insulated from criminal prosecutions. In addition, it is uncertain whether as a former president, Trump can assert executive privilege. Rather, it is argued, incumbent presidents can decide whether to assert executive privilege on behalf of their predecessors or waive the privilege, as Biden has done for Trump.

Biden is not only asserting executive privilege as a sitting president, he has also been cleared of criminal prosecution and now wants to prevent undue intrusion into the operations of the executive branch by members of Congress. Moreover, in releasing the written transcripts, Biden has asserted a narrower scope of privilege than the sweeping one asserted by Trump.

Although claims of executive privilege typically arise when presidents want to preserve the confidentiality of their conversations or other deliberations with aides, Biden’s claim rests on the executive branch’s interest in preserving the confidentiality of law enforcement proceedings. As Garland has observed, public disclosure of information learned in criminal investigations can compromise the integrity of the law enforcement process. If the audiotapes can be subpoenaed in this case, witnesses in future cases may be reluctant to talk to the authorities out of concern that these conversations could be made public, for example. To be sure, Biden already has released the transcripts, but the risks to future witnesses are much greater when their testimony can be subpoenaed by a politically motivated Congress rather than when it can be released voluntarily by the executive branch.

In addition, Biden’s withholding of the audiotapes doesn’t rest solely on principles of executive privilege. The congressional subpoena for the audiotapes raises important concerns about its effect on the separation of powers. Separation of powers concerns are heightened when Congress seeks information about the president because members of Congress might be more likely to try to usurp the executive authority to enforce the law when a president is the defendant, or they might use their subpoena power for political purposes.

Accordingly, the Supreme Court has adopted special safeguards to draw a proper balance between the interests both for and against public disclosure when Congress subpoenas a president. And while executive privilege gives a president greater reason to resist a congressional subpoena, the Supreme Court has recognized that presidents also may be able to protect even unprivileged information. Separation of powers concerns do not allow presidents to block legitimate exercises of the legislative power, but they do allow presidents to prevent illegitimate exercises of the legislative power. Importantly, the burden is on Congress to justify its access to the desired information.

Especially instructive are the guidelines issued by the Supreme Court, ironically in another case involving Trump. Trump v. Mazars dealt with congressional subpoenas of Trump’s financial records. Democrat-controlled House committees sought the records as part of their inquiries into the need for legislative reform “in areas ranging from money laundering and terrorism to foreign involvement in U.S. elections.” In that case, Trump did not claim that the records were protected by executive privilege.

Since the case raised novel legal questions, the Court established guidelines for trial courts to apply when judging the validity of a congressional subpoena and returned the case to the lower courts to apply the guidelines. Ultimately, the lower courts allowed access to some of the requested records.

In its ruling in Mazars, the Supreme Court identified two important principles, the first applying to any congressional subpoena and the second to subpoenas involving the president.

First, a congressional subpoena must serve a “valid legislative purpose.” Thus, Congress can gather information to better understand when and how to pass laws, to determine whether impeachment is warranted or to carry out its other responsibilities. But Congress cannot compel evidence to try someone for a crime — a core executive branch function — nor is there a “congressional power to expose for the sake of exposure.”

Accordingly, congressional committees cannot seek the audiotapes simply because members of Congress want to validate their belief that Biden violated the law regarding classified documents. In addition, while Biden may have political reasons for withholding the audiotapes, such as fearing they will make him look bad as Election Day comes closer, Congress still needs a nonpolitical reason for seeking the tapes.

Second, even when there is a valid legislative purpose — and House Republicans have cited multiple purposes for accessing the Hur audiotapes, including the possibility of legislative reform regarding the use of special counsels to investigate presidents — any subpoena of a president must limit its reach to information that is truly needed and that cannot be obtained from other sources.

Thus, members of Congress need to explain in some detail, to a court if necessary, why the transcripts of Hur’s interviews are inadequate for a valid legislative purpose and what they think they will learn from the audio that they cannot learn elsewhere. So far, as the Department of Justice observed in rejecting the subpoena, they have not. Ironically, while releasing the transcripts weakens the argument for privileging the audiotapes, it also weakens the argument for a subpoena of the tapes.

It is not surprising that a congressional committee might overreach when issuing a subpoena to a president and risk compromising executive authority. As I have previously written, the House January 6 committee intruded into the executive authority in its work. In its investigation of the violent assault on the Capitol, the committee often acted more like it was conducting a grand jury investigation than undertaking a legislative inquiry.

If House committees want to obtain information from presidents, it is not sufficient to assert a generalized interest in the information and subpoena any records that might be relevant. They need to be much more precise in justifying their desire for access than the committees seeking the Biden audiotapes have been.

This has been updated with the latest news developments.

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