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Justice Department faces fraught decision with contempt referrals pending

Some say failing to bring charges would render subpoenas useless but analysts say it is complicated

Attorney General Merrick Garland speaks at a news conference this month. (Jim Lo Scalzo/European Pressphoto Agency)

The contempt of Congress referrals are starting to pile up at the Justice Department.

The House of Representatives on Wednesday added two names to the list of those it wants to see prosecuted for refusing to comply with subpoenas from the committee investigating the Jan. 6 riot at the Capitol: Peter Navarro and Daniel Scavino Jr., who at the time of the riot were White House trade and manufacturing director and communications chief, respectively.

It has been nearly four months since lawmakers similarly voted to hold former White House chief of staff Mark Meadows in contempt, a referral on which the Justice Department has taken no action.

With midterms looming and the congressional committee trying to wrap up its work, a growing chorus of Democrats say Justice officials must charge Navarro, Scavino and Meadows, or risk sending the message that a congressional subpoena is meaningless. Committee member Rep. Adam B. Schiff (D-Calif.) said a failure to indict “would eviscerate congressional oversight, particularly oversight of a corrupt executive.”

But legal analysts said the situation is somewhat more complicated. Although Justice might ultimately bring charges against the former White House aides, they said, the department must first grapple with several issues including the aides claiming executive privilege, the legal opinions from the department that give such people broad protection from having to appear before Congress, and the precedents that indictments might set in bringing other criminal cases.

Federal prosecutors criminally charged former White House chief strategist Stephen K. Bannon with contempt in November, less than a month after the House referred him. But Bannon had stopped working for President Donald Trump long before Jan. 6, 2021.

Analysts say those who were still employed by the White House leading up to the riot, such as Meadows, Navarro and Scavino, have at least somewhat plausible claims that they cannot be compelled to testify, which could complicate bringing charges against them. That is because Trump can claim their conversations should be shielded by executive privilege.

The Justice Department historically has defended the right of the executive branch to assert executive privilege, and past Justice Department legal opinions have asserted that Congress cannot make the president’s top advisers talk about their official duties. But this case is complicated because President Biden has declined to assert privilege, and the law is murkier on a former president’s power to do so.

Asked Wednesday about the delay in making a decision on Meadows, and criticism that lack of Justice Department action could render congressional subpoenas toothless, Attorney General Merrick Garland said only that prosecutors would “follow the facts and the law.” He added, “We don’t comment any further on investigations.”

Lawyers for Scavino and Meadows, as well as Navarro himself, said they cannot talk to the panel because of Trump’s privilege claims. Mary McCord, a former Justice official who once led the criminal division of the U.S. attorney’s office in the District of Columbia and assessed congressional referrals, said the three men “at least had held these high-level positions,” which made their cases “more complicated than Bannon.”

Merrick Garland wants to restore integrity at the Justice Department

But from what is known publicly so far, McCord said, their claims of possible protection from testifying might not be so strong. McCord noted that the Supreme Court had recently rejected Trump’s request to block the release of some of his White House records from the National Archives, and that Trump had not articulated what damage the executive branch would suffer if his former aides were made to testify.

If a court were weighing whether Trump’s former aides had valid privilege protection, it would have to compare that damage to the harm the committee might suffer in not getting to the bottom of what happened Jan. 6. “Right now, there’s nothing on that side of the ledger,” McCord said. “Everything is on the side of the House select committee.”

Some analysts said they expect the Justice Department will indict all those who refuse to comply with Jan. 6 committee subpoenas, even though it may take longer for some cases than it did for Bannon.

“I’m betting that Garland will eventually indict, seek a grand jury indictment, because to not do so is to invite contempt of Congress without consequence, and I can’t believe that Garland would tolerate that,” said New York University Law School professor Stephen Gillers.

But, Gillers added, Meadows, Navarro and Scavino could attempt “the established Trump defense of run out the clock,” raising various legal arguments to the Justice Department and in court that would delay any proceedings until a Republican administration took over. Of particular importance, analysts said, is the Justice Department’s own past legal guidance, repeated in multiple administrations, that Congress cannot compel aides to testify.

Trump is right that former presidents can assert executive privilege

While the current president is the person who can assert executive privilege, and Biden has chosen not to do so for Trump’s aides, the law affords Trump some deference. When the Supreme Court rejected Trump’s request to block the release of some of his records, Justice Brett M. Kavanaugh noted that Trump could invoke executive privilege, even as Kavanaugh ruled against the former president for other reasons.

“A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim,” Kavanaugh wrote. “Concluding otherwise would eviscerate the executive privilege for Presidential communications.”

His opinion illustrates the possibility that if Meadows, Navarro or Scavino are prosecuted and convicted then appeal the charges against them, the high court could ultimately rule in their favor, concluding in part that the former president’s claims of privilege prevent them from having to testify.

McCord said Trump might be able to claim that forcing his aides to testify would “chill the discussion of high-level aides and the president in future presidencies.” But in this case, she added, “That’s just not a very persuasive argument.”

McCord noted that Meadows, Scavino and Navarro refused to testify before the committee and declined particular questions on the basis of executive privilege. Nor have they agreed to sit for questions and refuse to answer some on the grounds that doing so could incriminate them, which former Justice Department official Jeffrey Clark said he would do late last year.

Schiff pointed out that courts have not backed the Justice Department’s past legal opinions on executive privilege. Even if they had, he argued, executive privilege does not shield aides from having to discuss topics outside of their official duties.

McCord said top officials would be mindful of the precedent they may set in prosecuting former top level White House staffers for refusing congressional subpoenas, aware of the potential for investigations and summonses that hamper executive branch functioning in the future. “There is an institutional interest in protecting privilege in the right cases,” McCord said.

Justice Department to investigate boxes of Trump documents

David Laufman, a former Justice official now in private practice who represented two Capitol police officers in congressional testimony about the Jan. 6 attack, said if he were still at the department, he would probably ask the Office of Legal Counsel to provide an opinion on former presidents’ asserting executive privilege and the litigation risk that could come from prosecuting the former aides. But he added that he saw no privileges on which the former aides could rely.

“It would seem quizzical for the Department of Justice, after carefully reviewing the facts, not to proceed expeditiously to bring criminal charges for contempt of Congress,” Laufman said. “The Department of Justice needs to bring the same sort of urgency to making charging decisions in this case as it would in other matters of compelling national interest, particularly when there’s a threat to the homeland, which is precisely what is at stake here.”

While Meadows, Scavino and Navarro all held key White House positions during the events the committee is investigating, the Justice Department might have different considerations in each case, analysts said. Meadows cooperated with the committee for a time, turning over thousands of documents including personal emails and texts that his attorneys believed were not privileged, before ultimately refusing to testify. Though Navarro was a White House adviser, his work was supposed to be centered on trade and manufacturing.

“A decision on each one will be made on the merits of each individual case,” McCord said. “What they do on Meadows, they have to be considering how that will impact the future. But it doesn’t mean if you do one, you do them all. Or if you don’t do one, you don’t any of them.”

In 2008, the Justice Department rebuffed a contempt referral against President George W. Bush’s chief of staff, Joshua Bolten, and former White House counsel Harriet Miers, who had resisted subpoenas over the controversial forced resignations of U.S. attorneys. In 2012, under President Barack Obama, the department declined to pursue a contempt prosecution against Attorney General Eric Holder, who refused to turn over some documents on the “Fast and Furious” scandal, a sting operation gone wrong.

The Bannon case is still making its way through the court system. On Wednesday, a federal judge dealt a blow to his defense, ruling Bannon could not argue he was merely acting on the advice of his lawyer when he bucked his congressional subpoena.

Bennie G. Thompson (D-Miss.), the Jan. 6 committee chairman, said Wednesday that referrals of Meadows, Scavino and Navarro were “very strong” contempt cases. But he demurred when asked about the importance of the decision on whether to prosecute.

“We’ve now done all we can do in terms of the contempt. It is now in the hands of the Department of Justice,” Thompson said. “We still have a body of information that we’ve gleaned from over 800 other witnesses.”

The Jan. 6 insurrection

Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. In what was likely its final hearing, the committee issued a surprise subpoena seeking testimony from former president Donald Trump. Here’s a guide to the biggest hearing moments so far.

Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.

What we know about what Trump did on Jan. 6: New details emerged when Hutchinson testified before the committee and shared what she saw and heard on Jan. 6.

The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.

Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.

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