Washington –– A Republican-led effort to hold Attorney General Merrick Garland in inherent contempt of Congress fell short on Thursday, without enough support among House Republicans for a resolution to impose a fine of $10,000 per day on Garland for defying a congressional subpoena.

In a 204 to 210 vote, four Republicans voted with all Democrats to oppose the measure. 

Rep. Anna Paulina Luna, a Florida Republican, forced the vote, which she has been threatening in recent weeks, warning that if Garland didn't comply with a subpoena for the audio recording of an interview concerning President Biden's handling of classified documents, that she would move forward with the tool, which has rarely been used, especially in modern times. 

Luna initially intended to bring up a resolution that could have resulted in Garland being taken into custody, but opted to move forward with the daily fine approach amid pushback from her GOP colleagues. 

"In order for the House of Representatives to do its job, we must have access to the information that will allow us to make informed decisions on behalf of our constituents," Luna said on the the House floor on Wednesday. "We have been left with no choice but to rely on inherent contempt, our constitutional authority to hold an individual accountable for refusing to comply with congressional demands."

House Republicans are seeking audio recordings of the president's interview with special counsel Robert Hur, which came as part of an investigation that wrapped earlier this year. Though the House Judiciary and Oversight committees demanded that the Justice Department provide the tapes as part of their impeachment inquiry into the president, the president asserted executive privilege over the recordings in May. But that didn't prevent House Republicans from voting to hold Garland in contempt of Congress for the refusal to hand over the recordings in a vote last month.

Though the move to hold Garland in contempt marked an escalation, it was not without precedent. In 2012, former Attorney General Eric Holder was held in contempt, as was former attorney general Bill Barr in 2019. Neither faced criminal charges from their own Justice Departments.

Absent compliance, inherent contempt is one of three formal methods that Congress can use, according to a 2017 report from the Congressional Research Service. The report notes that the "long dormant" inherent contempt power allows Congress to detain and imprison an individual until they comply and "there may be an argument for the imposition of monetary fines as an alternative." The other avenues involve relying on the other branches of government to enforce subpoenas. 

But the report outlines that there's no precedent for Congress imposing a fine in the contempt of Congress context. And a 2019 report from the Congressional Research Service notes that "even if Congress retains this authority, it is unclear how such a fine would be implemented and, in the case that the contemnor refuses to remit the sum, collected."

A spokesperson for the Justice Department told CBS News that the move is "unconstitutional."

"We are confident our arguments would prevail in court," the spokesperson said. 

Democrats fiercely opposed the resolution, claiming Republicans are seeking the audio only so they may be used in attack ads against the president.

"This is a stupid resolution," Rep. Jim McGovern, a Massachusetts Democrat, said. "The attorney general turned over the exact transcripts of the interview that Republicans demanded, but that wasn't good enough… this is Republicans weaponizing the government to go after their political opponents."

Luna's privileged motion, which bypassed House leadership to get a vote on the floor, required that leadership schedule the vote within two legislative days. Speaker Mike Johnson indicated ahead of the vote that he would vote in favor of the resolution, though he said his preference would be to continue to seek relief through the courts.

"I'm for being as aggressive as possible with holding Merrick Garland accountable," Johnson said at a news conference on Tuesday. 

House leadership has so far appeared inclined to pursue enforcement of the subpoena, especially since a disastrous debate performance by President Joe Biden prompted increased calls to gain access to the audio recording that likewise prompted alarm among Democrats about the president's fitness for another term earlier this year. The House Judiciary Committee filed a lawsuit earlier this month against the Justice Department to enforce the subpoena. 

Former President Donald Trump came out in support of the measure on Wednesday, saying he agrees with the move to hold Garland in inherent contempt in a social media post. "Republicans MUST GET TOUGH about stopping weaponization and cheating," he wrote.

In:
• Merrick Garland
• U.S. House of Representatives

Kaia Hubbard

Kaia Hubbard is a politics reporter for CBS News Digital, based in Washington, D.C.

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