The Justice Department said on Friday that it would not prosecute Attorney General Merrick B. Garland for declining to comply with a congressional subpoena for audio recordings of President Biden’s interview by a special counsel.
The decision had been expected. The Justice Department does not consider it a crime for a government official to fail to comply with a subpoena for material when the president has invoked executive privilege, as Mr. Biden did last month. The privilege is a constitutional prerogative to lawfully keep secret certain internal information concerning the executive branch.
“The longstanding position of the department is that we will not prosecute an official for contempt of Congress for declining to provide subpoenaed information subject to a presidential assertion of executive privilege,” Carlos Felipe Uriarte, the assistant attorney general for legislative affairs, wrote in a letter to Speaker Mike Johnson.
In a statement, Mr. Johnson said that “the House disagrees with the assertions in the letter from the Department of Justice” and that it would file a lawsuit asking a judge to order Mr. Garland to comply with the subpoena.
House Republicans voted on Wednesday to declare Mr. Garland in contempt of Congress and to make a criminal referral to the Justice Department. It escalated a dispute over the disclosure of recordings of an interview that Robert K. Hur, the special counsel who investigated the president’s handling of classified documents, had conducted with Mr. Biden.
Mr. Garland named Mr. Hur, a former Trump-appointed U.S. attorney, as a special counsel in January 2023 to investigate how classified documents from Mr. Biden’s vice presidency had ended up at his house in Delaware and in an office in Washington that he used after leaving office.
Mr. Hur produced a nearly 400-page report concluding that there was no case to bring against Mr. Biden. While he said there was some evidence consistent with a conclusion that Mr. Biden had willfully retained classified material without authorization, he said the facts fell short of proof. “In addition to this shortage of evidence, there are other innocent explanations for the documents that we cannot refute,” Mr. Hur wrote.
His report also sharply distinguished between Mr. Biden’s cooperation with the investigation and former President Donald J. Trump’s repeated refusal to return classified documents that ended up at his Mar-a-Lago estate. (Mr. Trump faces charges of unauthorized retention of national security files and of obstructing efforts by the government to retrieve them.)
But Mr. Hur also portrayed Mr. Biden as doddering, calling him an “elderly man with a poor memory” who has “diminished faculties in advanced age.” White House and personal lawyers for Mr. Biden have called that portrayal both inaccurate and inappropriate.
The White House turned over transcripts of Mr. Hur’s interviews with Mr. Biden, but House Republicans subpoenaed the recordings. Republicans argued they needed the audio, in part to make sure the transcripts are accurate. Democrats have accused Republicans of wanting the recordings for partisan fodder rather than for any legitimate oversight purpose.
Justice Department lawyers have said that executive privilege is legally justified because lawmakers already have the transcripts and that turning over the recordings would undermine “the department’s ability to conduct similar high-profile criminal investigations in the future — in particular, investigations where the voluntary cooperation of White House officials is exceedingly important.”
In explaining that the department would not open a criminal investigation into Mr. Garland based on House Republicans’ referral, Mr. Uriarte noted that past administrations of both parties had taken the same position, citing examples from the George W. Bush, Obama and Trump administrations.
