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Meadows referral creates new legal, political challenge for Garland and DOJ

Former White House chief of staff Mark Meadows speaks to reporters outside the White House in October 2020. (Alexander Drago/Reuters)

The U.S. House of Representatives’ decision to hold former White House chief of staff Mark Meadows in criminal contempt again puts at the feet of the Justice Department a political and legal conundrum, analysts say.

If prosecutors charge Meadows for failing to comply with a subpoena from the committee investigating the Jan. 6 breach of the U.S. Capitol, they could risk undermining the ability of the executive branch to keep officials’ discussions private — including in future administrations. They could also face Republican allegations that they’re abandoning precedent to unfairly target a political foe.

Decline to do so, however, and federal prosecutors could hamstring lawmakers’ investigation into a brazen attack on the seat of American democracy, while facing blistering criticism from Democrats and liberal groups.

Congress’s latest contempt referral is another political headache for Attorney General Merrick Garland, who came to the department hoping to extricate the Justice Department from partisan infighting after the Trump presidency.

It is being handled initially by career prosecutors in the U.S. attorney’s office in D.C., who could seek a grand jury indictment. High-level officials will surely assess those prosecutors’ decisions.

On Wednesday, President Biden weighed in on the matter, saying Meadows was “worthy of being held in contempt.”

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Meadows’s attorney has said he is refusing to appear before the committee because “as a former Chief of Staff he cannot be compelled to appear for questioning and that he as a witness is not licensed to waive Executive Privilege claimed by the former president.”

On Dec. 13, Rep. Liz Cheney (R-Wyo.) detailed a series of text messages Mark Meadows received on Jan. 6 from Donald Trump Jr. and Fox News host Laura Ingraham. (Video: AP)

But while former president Donald Trump might have some say in the matter, invoking executive privilege is up to the current president, not the former one. And in November, a lawyer for Biden told Meadows that the president won’t do so in this case — a decision which Meadows’s attorney has suggested would depart from a long tradition of presidents protecting current and former White House aides from compelled testimony.

“As with all criminal referrals, we will evaluate the matter based on the facts and the law, and the Principles of Federal Prosecution,” said Bill Miller, a spokesman for the U.S. attorney’s office in D.C. A spokesman for Garland declined to comment.

The House voted in October to hold former White House chief strategist Stephen K. Bannon in criminal contempt for his refusal to comply with a subpoena from the Jan. 6 committee. Less than a month later, the Justice Department charged Bannon with two counts of contempt. The charges, which each carry a maximum sentence of one year in jail, were seen as a warning shot to others who might resist the committee’s demands.

But bringing a case against Meadows will be more challenging than bringing one against Bannon, analysts say. Bannon was not a White House official during the events surrounding Jan. 6 — so it’s harder for him to claim his conversations with the president should be protected.

Meadows, in contrast, was Trump’s chief of staff during the insurrection. Past Justice Department legal opinions have asserted generally that, if the president invokes executive privilege, his senior aides cannot be made to testify. This instance is unusual, however, in that the current and former presidents find themselves at odds.

Trump has sought to keep his White House records out of the hands of the Jan. 6 committee — though last week, a federal appeals court rejected his bid to do so.

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“This is a harder call than Bannon,” former U.S. Attorney Barbara McQuade, who served in the Obama administration, said of compelling Meadows to appear. “Bannon was an easy call because he was out of the White House by the time he spoke to President Trump about the issues that the committee is interested in. Meadows, on the other hand, is the chief of staff. He probably has a stronger claim than anyone on the planet, based on his position.”

The Justice Department has in recent history refused to bring criminal cases against current and former administration officials after contempt findings from Congress, citing the invocation of executive privilege.

In 2008, for example, the department rebuffed charges 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, the department declined to pursue a contempt prosecution against Attorney General Eric Holder, who refused to turn over some documents about the so-called Fast and Furious scandal, a gunrunning sting gone wrong.

“The executive branch generally takes an expansive view of executive privilege, and they have got to be thinking about what precedent is created if and when Republicans take control of the House of Representatives in a year,” said Will Moschella, who served as assistant attorney general in the Office of Legislative Affairs in the Justice Department under George W. Bush.

Before Meadows failed to appear for a deposition before the committee, he had been at least somewhat cooperative — turning over thousands of documents, including personal emails and text messages, that his attorneys believed were not privileged. But in early December, his attorney said he would not appear for a deposition and would respond only to written questions.

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McQuade said Meadows’s failure to appear at all — rather than show up and individually refuse to provide information he believed could be privileged — might make the case easier to prosecute. “There are many things he could answer that are not privileged, including things like conversations he had with third parties,” she said.

George J. Terwilliger III, Meadows’s attorney, wrote to the committee on Monday that a referral for prosecution “would be contrary to law, manifestly unjust, unwise, and unfair.” He had earlier filed a lawsuit seeking to have a federal judge declare the committee’s subpoenas invalid.

“A referral of a senior presidential aide would also be unwise because it would do great damage to the institution of the Presidency, as restraint in the application of the statute over time attests,” Terwilliger wrote.

Rep. Bennie G. Thompson (D-Miss.), the committee chairman, said Tuesday: “This isn’t about any sort of privilege or immunity. This is about Mr. Meadows refusing to comply with a subpoena to discuss the records he himself turned over.”

Even if Meadows were to be prosecuted and convicted, that would not by itself get Congress the information it seeks, analysts said. To accomplish that, Congress would have to sue Meadows and have a judge hold him in civil contempt, throwing him in jail until he agreed to cooperate. And that process might not wrap up before the midterm elections, the analysts said.

“The criminal referral’s about punishment, but part of that process is not he gets ordered to go testify,” said former federal prosecutor Randall Eliason. “If what they’re really about is getting the testimony, then they need to move on that front, as well.”

Tom Hamburger contributed to this report.