Republicans in the House of Representatives want to arrest Merrick Garland, but they are not sure how to do it

WASHINGTON – A small group of Republicans is pushing this week for the House to find Attorney General Merrick Garland guilty of “contempt of contempt” of Congress. It’s a rarely used step that, if successful, could lead to a historic clash in which the nation’s law-makers attempt to arrest and jail its top law enforcement official.

It’s an archaic procedure that Congress hasn’t tried in nearly a hundred years. There are no votes for it this time either. And even if the move had support, the dispute would be resolved in federal courts, given the dispute is between two equally powerful arms of the U.S. government.

Behind these actions is Rep. Anna Paulina Luna, D-Florida, a newly minted lawyer who is pushing the “inherent contempt” resolution against Garland as retaliation for her refusal to release audio recordings of President Joe Biden’s interview with special counsel Robert Hur. . Luna plans to force a vote on its resolution Friday morning, although opposition from lawmakers on both sides of the aisle means the resolution is not expected to go anywhere.

Ahead of this showdown, multiple lawmakers told USA TODAY that “inherent contempt” is a concept they don’t understand and also don’t agree on what it means.

“I haven’t been following it,” Rep. said. Ryan Zinke, a Montana Republican, added that he did not plan to “spend a lot of time” researching the procedure.

Rep. Cliff Bentz, R-Ore., admitted he has read a little about this little-known maneuver but has not yet fully researched it. “I wouldn’t be surprised if everyone was doing the same thing,” he said.

“We’re still looking into it, but I can talk to you about it later,” added Rep. Nick Langworthy, RN.Y.

Earlier this month, House Republicans found Garland in “criminal contempt” — another move that referred the case to the U.S. attorney for the District of Columbia for indictment. However, the Justice Department refused. Instead, House Republicans are suing to obtain the audio recording.

At a news conference Wednesday, Luna said the court battle would take far too long and the House could instead take matters into its own hands. The idea behind “inherent contempt,” she said, is that the House could bypass the judiciary altogether.

What is innate contempt?

If the resolution actually passes, the House Sergeant at Arms – the chief law enforcement officer who maintains order in the chamber – will be able to arrest Garland and bring him before the House.

For its part, the Supreme Court in 1821 ruled that Congress—though not spelled out in the Constitution—technically had the power to punish those in contempt, arguing that it was necessary for the functioning of the legislative body. Since then, the Supreme Court has repeatedly upheld this ruling. In 2019, Democrats also floated the idea of enforcing subpoenas against Trump administration officials, including then-Attorney General William Barr, but did not follow through on the idea. Inherent contempt could also include fines instead of arrest and prison, as some Democrats have suggested.

However, Luna’s resolution calls for Garland’s arrest.

“I understand this sounds extreme. “Putting the AG in handcuffs and dragging him over here sounds extreme,” Rep. Dan Crenshaw of Texas, a supporter of Luna’s resolution, said at a press conference.

Regardless, treating Garland as “innately contemptuous” poses a number of logistical problems. Garland, as attorney general, is the nation’s top law enforcement official, who has his own security detail. It’s unclear how exactly the Capitol Police sergeant at arms intended to take Garland into custody.

Rep. Kelly Armstrong, R-N.D., expressed doubt that Capitol Police could simply march up to Garland and handcuff him: “I don’t think the sergeant at arms is going to go to the Department of Justice to arrest the attorney general.”

Don Ritchie, a former Senate historian, told USA TODAY that he assumed the sergeant at arms would first politely issue Garland a subpoena to appear before the House of Representatives before arresting him outright.

After Garland’s theoretical arrest, the attorney general would be “prosecuted before the House of Representatives by the sergeant at arms and tried by the body,” according to a letter Luna sent to her colleagues urging them to support her resolution. Whatever this means is unclear.

“There are some interesting dynamics going on here that we’re trying to get a handle on,” explained Rep. Kat Cammack, R-Fla.

The last time “innate contempt” occurred was in 1934

The last time Congress invoked the power of “inherent contempt” was in 1934, when the Senate Sergeant at Arms arrested lawyer William MacCracken for failing to testify in connection with the airmail scandal.

In MacCracken’s case, he was in custody at the luxurious Willard Hotel. He was later sentenced to 10 days in prison, but ultimately failed to provide the information the Senate wanted.

As for Garland, any move by the House to arrest the attorney general for “inherent contempt” raises logistical questions about where he might be held. There are no jail cells in the sprawling Capitol complex, and it’s unclear how a room there could be converted into something like a jail cell.

People have been held in the Capitol before. In the 19th century, senators ordered journalists locked up in two cases for failing to reveal their sources.

In the first case, John Nugent, a reporter for the New York Herald, was imprisoned in the committee room for failing to disclose his sources in 1848. In the second case, Zebulon White and Hiram Ramsdell of the New York Tribune were also imprisoned in the committee room in 1871 ., if they did not reveal the identity of the source. All three journalists were later fired when senators realized the futility of their efforts, and their sources were never revealed.

Technically, Garland could be held in a Washington, D.C. jail, but it’s unclear whether the city will comply given House Republicans’ frosty nature in dealing with city officials over local crime.

Armstrong didn’t dispute that there are certainly rooms in the Capitol building that could hold someone, but the question is whether “we have a functioning prison.”

“If you hold someone for a period of time, what you’re really dealing with is food, laundry and underwear. I mean, are we going to use UberEats in the basement?” Armstrong said.

Rep. Darrell Issa, D-Calif., conceded that almost none of the “inherent contempt” procedures appear to be enforceable and said it was more of a way to send a message to the White House that the House opposes “unlawful and unconstitutional action.”

Issa also couldn’t think of where in the Capitol Garland could be held, but he thought a vault in the Capitol’s basement – originally intended as George Washington’s final resting place – would be appropriate: “We’d have to rebuild it, move some things around.