House Republicans warn Garland could be brought into custody over Biden tapes ahead of inherent contempt vote

Rep. Anna Paulina Luna, R-Fla., warned that U.S. Attorney General Merrick Garland could be brought into custody for failing to deliver tapes of special counsel Rob Hur's interview of President Biden to Congress. 

Joined by nine other House Republicans, including Freedom Caucus members as well as more moderate members, Luna announced at a press conference Wednesday that Garland "still has time" to comply with a congressional subpoena for the tapes, but if he does not, "we will press forward with calling the privilege motion on inherent contempt to the floor on Friday morning." 

If the motion is successful, fellow House Republicans will direct House Speaker Mike Johnson to call up the Sergeant-at-Arms, "of which they do have the authority under this inherent contempt motion to bring him into custody," Luna said. "I also want to make it clear, though, that this is of Garland's choosing. Again, no one is above the law. And if he chooses to go down this path, then we will." 

"It is also important to note that if we, as a Congress, do not have the ability to enforce our investigative ability, that we are essentially going to be ignored and undercut and essentially handicapped by all other branches, which would make us not a co-equal branch of government," Luna said. 

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Inherent contempt differs from the criminal contempt resolution passed on June 12. The latter referred Garland to his own department for criminal charges. 

The Department of Justice said it would not prosecute Garland because he was acting on Biden's own executive privilege claims over the interview tapes.

The inherent contempt power "is a constitutionally based authority given to each house to unilaterally arrest and detain an individual found to be ‘obstructing the performance of the duties of the legislature,'" according to the Congressional Research Service. "The power is broader in scope than the criminal contempt statute in that it may be used not only to combat subpoena non-compliance, but also in response to other actions that could be reviewed as ‘obstructing’ or threatening either house’s exercise of its legislative powers." 

When asked whether the House speaker has considered alternative ways to enforce the subpoena, Luna said she thinks that Johnson "is open to discussions on how to best enforce this," but argued that with "what's currently happening in our country," a different process "would take a very long time."

"Why would we do that when we have the direct ability to do it here in the House? What you are seeing is the American people have a deep distrust in our ability to not only effectively govern, but also, too, they've lost faith within the Department of Justice and that we are truly an equal country," Luna said. "Poor White, Brown, Black Americans don't have the privilege of ignoring subpoenas when they're called to come to court. I think that it's pretty egregious that the man that's in charge, and really the head enforcement officer, is basically choosing to break the law." 

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"I understand that this sounds extreme," Rep. Dan Crenshaw, R-Texas, said. "It sounds extreme to put the AG in handcuffs and drag him in here…. I'll tell you why I'm here, what motivates me. Because what the DOJ is doing in my hometown in Houston, they're willing to arrest a regular citizen, put them in handcuffs, charge them with ridiculous crimes. And for what? Because that particular citizen, a man named Doctor Haim decided to expose a crime in Texas. That crime was performing harmful gender transition practices on minors. He was indicted for alleged HIPAA violations and this demonstrates that Merrick Garland and this DOJ determination to target whistleblowers who oppose their ideology, they want to protect themselves." 

Citing the 118th Congress Jefferson Manual, Rep. Mark Alford, R-Mo., said inherent contempt has been used by the House of Representatives more than 100 times since 1795 and has been upheld by the Supreme Court. 

"If we allow the Department of Justice and Attorney General Garland to dictate whether or not a congressional subpoena is enforced, we risk becoming subordinate to the executive branch," Alford said. "That cannot happen. This is unacceptable. Congress must never rely on the actions of the other branches to carry out our constitutional responsibility under Article One. What does Attorney General Merrick Garland have to hide?"

Luna said Democrats considered using inherent contempt powers under former House Speaker Nancy Pelosi when Republicans failed to comply with Jan. 6 committee subpoenas, but they ultimately decided against it to avoid risking opening themselves up to discovery. In a contentious exchange with a reporter, Rep. Derrick Van Orden, R-Wis., on Wednesday said he believes those people who failed to comply are now "in jail." 

"I think they're in jail. So are you suggesting the attorney general should be in jail? Because that's what it sounds like," Van Orden said. "Listen, what's good for the goose is good for the gander. So the Democrat Party under Nancy Pelosi politicized this body to the point where it's destructive to the fabric of our nation. And it is time for a reckoning. This has got to stop." 

"The only way that this is going to stop is if the president of the United States reads this," he said, holding up a copy of the U.S. Constitution. 

"This is the law of the land. Is that clear? Now do your jobs, people. For Pete's sake."

When asked whether she was confident she had enough votes from GOP colleagues to pass the resolution, Luna pointed to those who joined her at the press conference. Those members also included Republican Reps. Harriet Hageman of Wyoming, Russell Fry of South Carolina, Max Miller of Ohio, Ben Cline of Virginia, Richard McCormick of Georgia and Tim Burchett of Tennessee. 

"As you're seeing behind me, we have a great cross-section of what the conference represents. Everyone is aware that this is absolutely backed by the Supreme Court, that we have the constitutional authority to do this, and that this is not a laughing matter," Luna told reporters. "I've yet to hear anyone say that they are going to vote on a motion to table, which would prevent this from coming to the floor." 

As more than 100 members were still missing Tuesday, Luna said she wanted to wait until Friday when more Republicans returned to Washington to prevent the motion from being tabled. 

Congress has not invoked its inherent contempt power since 1934, when it resulted in Washington lawyer William MacCracken getting a 10-day jail sentence for not sufficiently complying with a Senate subpoena. The case went all the way to the Supreme Court, which backed Congress' right to exercise its inherent contempt powers in its February 1935 decision in Jurney v. MacCracken.  

Fox News' Liz Elkind contributed to this report.