The Department of Justice's Office of Legal Counsel says Attorney General Merrick Garland cannot be held in contempt for his refusal to turn over audio of special counsel Robert Hur's interview with President Joe Biden in his classified documents case.
The OLC advises the DOJ, the White House, and the executive branch on matters concerning presidential authority, executive privilege, and separation of powers, among other issues.
The Hill report comes as the House of Representatives is expected to vote on a resolution holding Garland in contempt of Congress for refusing to turn the audio over.
The White House weeks ago blocked release of the recording to lawmakers.
"For nearly seven decades and across presidential administrations of both parties, the Executive Branch has taken the position that the criminal contempt of Congress statute … does not apply to Executive Branch officials who do not comply with a congressional subpoena based on a presidential assertion of executive privilege," according to the OLC memo.
"Consistent with this longstanding position, no U.S. Attorney has pursued criminal contempt charges against an Executive Branch official asserting the president's claim of executive privilege."
Republicans quickly opened an investigation after Hur declined to prosecute Biden over his handling of classified documents.
Garland has defended the Justice Department, saying officials have gone to extraordinary lengths to provide information to the committees about Hur's investigation, including a transcript of Biden's interview with him.
"Because the committees have the transcripts of the special counsel's interviews, the needs the committees have articulated for the recordings are plainly insufficient to overcome a privilege claim grounded in these important separation of powers concerns," the OLC said in the memo.
"The audio recording will not reveal any information relevant to the committees' stated needs that is not available in the transcripts."