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AG Garland Held In Contempt; Creative Enforcement Necessary

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FOIA, or Court Appointment of Special Prosecutor, Should Be Considered

WASHINGTON - eTradeWire -- Hoping to force the release of an audio recording of President  Biden's interview by the office of special counsel, the House just held Attorney General [AG] Merrick Garland in contempt of Congress, but there appears to be no chance that the AG will permit himself to be prosecuted, although that is usually how the contempt process is supposed to work.

Public interest law professor John Banzhaf argues that asking a judge to use his inherent power to appoint a special prosecutor is worth exploring.

It's a novel approach, but Banzhaf's creative use of the law has led to him being called  "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars," the "Dean of Public Interest Lawyers," and an "Entrepreneur of Litigation, [and] a Trial Lawyer's Trial Lawyer."

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But, as Banzhaf argued in his motion seeking the appointment of a special prosecutor to investigate and if necessary prosecute Nixon, courts seem to have an inherent power - independent of any statutory authority - to appoint persons from outside the government to serve as prosecutors where there is a conflict of interest and the public interest would be served.

It also illustrates that this power of appointment is strengthened when there is already a case before the judge who has jurisdiction over the parties.

Fortunately there are already at least three lawsuits seeking the audio recording; this time under FOIA [Freedom of Information Act].  Lawyers for the plaintiff have argued that Biden's assertion of executive privilege - which seems legally dubious since he agreed to release the entire transcript of the interview - adds urgency to their demand under FOIA for the audio recording.

Banzhaf, who has enjoyed many successes with FOIA,  suggests that the House join and seek to utilize these already-filed lawsuits in light of the House contempt resolution.

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In summary, those seeking the audio recording, and/or those simply wishing to uphold and vindicate Congress' power to demand documents from the Executive Branch, probably will have to be creative and do something other than beseeching Garland to prosecute himself.

This might include asking a judge to use his inherent power to appoint a special counsel to avoid a clear and blatant conflict of interest, seeking to intervene in one or more of the already-pending law suits trying to obtain the recordings under FOIA and seeking an expedited decision and order because of the House's vote, trying to find someone else who has a copy of all (or even parts) of the recording, or something even more novel and creative, suggests Banzhaf.

http://banzhaf.net/  jbanzhaf3ATgmail.com  @profbanzhaf

GW Law

Source: Public Interest Law Professor John Banzhaf
Filed Under: Legal

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