Inherently complicated: House Republicans consider another angle to take on Attorney General Garland

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Merrick Garland faces weaponization claims and possible contempt of Congress charge

Fox News senior congressional correspondent Chad Pergram reports on AG Merrick Garland facing questioning over the Biden-Hur audio recording from  Capitol Hill on 'Special Report.' 

Attorney General Merrick Garland is on the clock.

Two House committees have voted to hold Garland in contempt of Congress. House Republicans aren’t pleased with Garland failing to cough up an audiotape of the transcribed interview Special Counsel Robert Hur conducted with President Biden in the classified documents case. Garland released a transcript of the interview. But Hur suggested that one of the reasons he didn’t charge Biden was because he thought a jury might view the president as an elderly forgetful man and take pity on him.

Many Republicans regularly claim the president isn’t altogether upstairs. The Wall Street Journal is now joining that chorus. GOPers are not so subtle as to their reasons for wanting the audiotape. They believe the recording could reveal a feeble chief executive who’s not fully in control of his faculties. As a result, Republicans could then use the tape to savage Biden and prove their thesis to voters ahead of the election.

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"The transcript may be accurate. But you know what? The audio would tell us so much more," said Rep. Andy Biggs, R-Ariz., at Tuesday’s Judiciary Committee hearing with Garland.

Rep. Dan Bishop, R-N.C., told Garland the tape "reveals things about [the president’s] capacity."

Garland won’t provide the tape. So the House Oversight and Judiciary Committees voted to hold him in contempt of Congress.

It’s not 100 percent certain the full House has the votes to hold Garland in contempt. Republicans now boast a 218 to 213 advantage in the House with the election of Rep. Vince Fong, R-Calif. Fong succeeded former House Speaker Kevin McCarthy, R-Calif., who resigned.

But even if the House votes to hold Garland in contempt, it’s doubtful much comes of it.

U.S. Attorney General Merrick Garland testifies before the House Judiciary Committee on Capitol Hill in Washington, D.C., on Tuesday.  (Getty Images)

Lawmakers may refer a contempt of Congress citation for noncompliance with subpoenas for documents or testimony to the Justice Department for prosecution. In short, the Justice Department run by Garland is not going to prosecute its own attorney general.

So, Republicans are stuck.

That’s where "inherent contempt" comes in.

Inherent contempt is an authority which Congress may deploy on its own without relying on another branch of government. In other words, Congress may vote to hold someone in contempt for failing to provide information — and inherently use its own powers to discipline, arrest or hold someone for running afoul of the House or Senate.

Lawmakers of both parties have spoken off and on for years about leaning on inherent contempt to get their way. But no one has really considered it as a legitimate option for the first time in nine decades until recently.

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Rep. Anna Paulina Luna, R-Fla., says she will introduce a resolution of inherent contempt — 10 days after the House votes on "regular" contempt for Garland. The idea is that the Justice Department won’t prosecute Garland, so Congress will take matters into its own hands.

Of course, it’s impossible to know if the House would ever command the requisite votes for an inherent contempt resolution — especially since "customary" contempt is dicey, too. But let’s explore inherent contempt for a moment and examine how it works.

Congress formerly leaned on inherent contempt in the early days of the republic. In fact, Congress voted to hold various newspaper publishers in contempt in the late 18th and early 19th centuries. In 1927, a Senate panel voted to approve a warrant for a witness who failed to comply with a subpoena. But a court ruled that the Senate overstepped its bounds in that case.

Congress last used inherent contempt in 1934. A Commerce Department official refused to comply with a congressional subpoena for documents related to an airmail scandal. So Congress held the official in contempt.

President Biden delivers remarks on an executive order limiting asylum in the East Room of the White House in Washington, D.C., in Tuesday. (Kevin Dietsch/Getty Images)

What did that involve?

After the House voted, it dispatched its House Sergeant at Arms to arrest the official. The House then held the official at the Willard Hotel — a posh establishment in downtown Washington close to the White House — for a week and a half.

Inherent contempt is inherently intriguing — but also inherently chaotic. Could one imagine the scene if the House approved an inherent contempt resolution for Garland? Would House Sergeant at Arms Bill McFarland and a squadron of his deputies — or U.S. Capitol Police officers — just surface at Garland’s home one day or the Justice Department and demand that the attorney general come with them? How would Garland’s protective detail respond? Would this be a cursory visit, perhaps informing Garland that he’s been held in inherent contempt of Congress? Or does this devolve into a tense exchange between the legislative and executive branches?

And even if Garland does come with McFarland to Capitol Hill, does the House continue to hold him? Pray tell, where? Does Garland just come immediately to the Capitol for an appearance with the Oversight and Judiciary Committees?

No one is quite sure. Even Luna, the sponsor of the measure.

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"Ideally, the attorney general would do the right thing and come present us representatives with information that we’ve been asking for. But that’s up to him to decide whether it’s above the law," said Luna.

Yours truly asked what the plan was, since inherent contempt would represent such a significant escalation involving a potential standoff between two branches of government.

"I think it hasn’t been done in a while. So we’ll see how it unfolds," said Luna.

I pressed Luna whether there might be a standoff between McFarland and Garland.

"I don’t think they ever anticipated that we would bring this forward," replied Luna. "This is absolutely something that can be done."

But no one knows how.

U.S. Attorney General Merrick Garland testifies before the House Judiciary Committee in the Rayburn House Office Building in Washington, D.C., on Tuesday.  (Chip Somodevilla/Getty Images)

A senior House security official tells Fox there has been some mulling of this. But everyone is just waiting to see what unfolds.

However, two things must happen first. The House must vote to hold Garland in contempt. And it would then vote to hold him in inherent contempt. And so far, the House hasn’t demonstrated it has the votes for "regular" contempt.

"It would be extraordinary to have the Sergeant at Arms go to [Garland’s] office. His house," I pointed out to Luna.

"We’re hoping that it doesn’t get to that," answered the Florida Republican.

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But as far as one can tell, there isn’t a plan. Inherent contempt is inherently complicated. Inherently messy. And inherently tumultuous.