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House urges judge to uphold Jan. 6 subpoena to top Trump aide Meadows

Lawmakers seek landmark ruling that top former advisers to presidents no longer enjoy ‘absolute immunity’ from congressional subpoenas after presidents leave office

Mark Meadows served as chief of staff to President Donald Trump from until January 2021. (Jabin Botsford/The Washington Post)
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A previous version of this article misspelled the name of George J. Terwilliger III. The article has been corrected.

Attorneys for the House on Wednesday urged a federal judge to uphold the authority of Congress and reject a bid by former Trump chief of staff Mark Meadows to quash a subpoena from the select committee investigating the Jan. 6, 2021, attack on the Capitol.

House general counsel Douglas N. Letter implored U.S. District Judge Carl J. Nichols of D.C. not to allow the former top aide to President Donald Trump to rebuff lawmakers’ demand for his testimony and records, and instead to issue a potentially landmark ruling saying top presidential advisers do not enjoy “absolute immunity” from compelled testimony once the presidents they serve leave office.

Meadows, a key Trump adviser in the weeks leading up to and on the day of the violent Capitol siege by angry Trump supporters, filed a lawsuit in December to toss out a May 2021 subpoena from the Jan. 6 committee, with which he partially complied by turning over thousands of documents including emails and text messages before ending his cooperation and being voted in contempt by the House.

At a two-hour hearing, Nichols, a 2019 Trump appointee, said he was “frustrated, to be honest” that the House did not ask him to dismiss Meadows’s lawsuit outright by citing the Constitution’s speech or debate clause — which prohibits lawsuits against lawmakers conducting Congress’s legitimate legislative functions — but instead asked him to make a more expansive and potentially impactful ruling about the extent of former top White House advisers’ immunity.

During the hearing, Meadows attorney George J. Terwilliger III said his client also sought to continue the lawsuit because it raised important legal issues that have not been resolved, even though the Justice Department has declined to prosecute Meadows for contempt of Congress and the court in this case cannot order him to testify.

Nichols said he would rule “appropriately quickly.” The House subpoena will expire in January if Republicans prevail in November’s elections.

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“Do you think that absolute immunity — even assuming it applies to former chiefs of staff to former presidents — would apply to nongovernmental communications?” Nichols pressed Terwilliger at one point, yielding a glimpse into his thinking.

Yes, Terwilliger replied, arguing that “the purpose of immunity is to protect the [office of] the presidency” from congressional interference under the Constitution’s separation of powers and that top White House aides must enjoy the same absolute protection as the president.

House lawmakers have cast Meadows as one of the shrinking number of top Trump White House aides who have not fully cooperated, and suggested that few have as intimate insight into the former president’s actions during the effort to overturn the election results in his presidency’s final weeks. In televised hearings this summer and a promised forthcoming public report, the committee has probed Trump’s pressure campaign on Vice President Mike Pence; moves by his lawyers and others in his inner circle who sought to substitute Trump allies for certified electors from some states Joe Biden won; and planning for the rally that preceded the Jan. 6 attack.

Letter said the information the House sought from Meadows had little do with the president’s official responsibilities of managing the executive branch or conducting foreign and military affairs, but rather concerned Trump’s unofficial and personal desire to remain in office for a second term.

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At Nichols request, the Justice Department weighed in on the case in July, siding with the House and taking the position for the first time that former aides to former presidents enjoy only “qualified immunity” from compelled testimony before Congress and that Meadows could be subpoenaed.

On Wednesday, Justice Department civil division attorney Elizabeth Shapiro told Nichols, who served as a former senior department civil division official from 2005 to 2009, that the court filing reflected the official position of the department.

Shapiro said that Nichols should apply a “sliding scale” to decide the scope of qualified immunity or executive privilege enjoyed by Meadows based on factors including the Congress’s legislative and the public’s interest in the information, and that the interests of former presidents in protecting communications diminish over time.

In opposition, Terwilliger argued that such a balancing test would defeat the whole purpose of protecting frank, full and unvarnished communications among a president’s advisers.

Forcing aides to consider during the daily crush of White House business whether their presidential communications are official and thus protected, or political, otherwise unofficial and not privileged, would be like trying to separate “dye in the water,” Terwilliger argued.

Terwilliger said Meadows “took umbrage” at Letter’s suggestion that Meadows was not fulfilling his patriotic duty as an American citizen “to respect the dignity of the Congress and its committees, and to testify,” quoting a 1957 Supreme Court decision.

“Mr. Meadows stance is a principled one, borne in part out of his respect for the necessity of maintaining the confidentiality of [presidential] communications and deliberations,” Terwilliger said. That protection exists for the benefit not of any individual president but for the nation, and could be even more important to preserve the effectiveness of Meadows or White House insiders like him, who Terwilliger delicately suggested, served “challenging presidents.”

House counsel Letter acknowledged that Meadows has offered to respond to the committee’s written questions and claimed to turn over all non-privileged records sought in seven requested categories and a log of documents he was withholding.

But Letter said it was important for a court to rule that there is no absolute immunity for White House aides to withhold documents, and to require Meadows to appear in person to assert any executive privilege over testimony, even if it is unclear whether any appeal would be resolved before the next Congress in January.

“We hope Mr. Meadows would say, ‘I have no valid grounds for not showing up. I have no valid grounds for not producing documents. I will now do my patriotic duty and show up, and do what so many others have done,’ ” Letter said, saying the Jan. 6 committee has heard from hundreds of witnesses including Cabinet secretaries and White House counsel.