Meadows contempt vote poses thorny questions for DOJ

The House’s vote to hold Mark Meadows in contempt has presented the Department of Justice (DOJ) with the question of whether to prosecute the former White House chief of staff, forcing it to weigh the major legal and political consequences that could come with breaking from longstanding executive branch policy. 

The DOJ’s stance for decades, throughout both Democratic and Republican administrations, has been to support testimonial immunity for the president’s close advisers when faced with congressional subpoenas — the very policy Meadows and his attorneys have pointed to as he refused to show up for a deposition.

Charging Meadows with contempt of Congress for defying subpoenas from the House Jan. 6 Select Committee would represent a departure from that historical trend and poses more complicated considerations for the department than its decision to prosecute Stephen Bannon, who was not a White House official when he helped Trump sow distrust in the 2020 election results.

“For several decades, DOJ has taken the view that close advisers to the president are absolutely immune from congressional subpoena — that Congress has no ability to force them to testify,” said Jonathan Shaub, a constitutional law professor at the University of Kentucky. “That’s the doctrine DOJ most has to grapple with in deciding whether to prosecute.”

The DOJ’s Office of Legal Counsel (OLC), which provides the executive branch with advice and binding legal policy, has held in several memorandums over the years that executive privilege provides the president’s close advisers with immunity from congressional subpoenas for their testimony.

But some say that the select committee’s pressing need to investigate the Capitol riot outweighs the executive branch’s institutional interests in maintaining its standing in such interbranch disputes, and that President Biden’s decision to waive executive privilege over Meadows’s testimony and records simplifies the choice facing the DOJ. 

Kel McClanahan, an adjunct law professor at George Washington University who has criticized the expansive views of executive branch authority that the OLC has historically adopted, believes that the Biden DOJ can bring charges against Meadows without disavowing its own stance on presidential privilege.

“I think that they would say, ‘Well, this is an exception to the OLC opinion because in the OLC opinion, OLC did not entertain the concept of the president explicitly authorizing testimony,’” McClanahan said. “The OLC opinion was whether or not senior staffers could be compelled to talk by a third party, and in this case, they’re not being compelled to talk by Congress, they’re being compelled to talk by the president agreeing with Congress. [They will come up with some] pretzel-like way to say ‘we agree with everything in the OLC opinion, but look over there,’ and do the prosecution.”

Courts have twice rejected the claims of testimonial immunity Meadows is seeking to assert, most recently when a federal district court judge ruled in 2019 that former White House counsel Don McGahn had to comply with a House subpoena as part of an impeachment inquiry into Trump. 

But the matter has never been settled by the higher courts, Shaub said, leaving room for the executive branch to push its expansive interpretation of the law surrounding congressional subpoenas for White House staffers. 

And McClanahan argued that OLC opinions, while binding on the DOJ and other agencies, would have little effect on a judge. 

“OLC opinions are weird. OLC opinions are afforded precedential controlling authority within DOJ — except when they’re not,” he said. “An OLC opinion has as much convincing power to a federal judge as an opinion that I wrote.” 

The Supreme Court has held that former presidents have some authority to claim that their records should remain confidential, but provided little guidance on how disputes should be resolved when a former president and a sitting president disagree about whether to assert privilege. 

Trump and his allies have fought the select committee’s investigation with claims of executive privilege, despite Biden’s refusal to shield the information from Congress.

This month, a federal appeals court denied Trump’s effort to block the National Archives from turning over his White House records to congressional investigators, ruling that the former president had failed to show why his interest in confidentiality is more compelling than Biden’s privilege waiver and the committee’s investigation.

“He offers instead only a grab-bag of objections that simply assert without elaboration his superior assessment of Executive Branch interests, insists that Congress and the Committee have no legitimate legislative interest in an attack on the Capitol, and impugns the motives of President Biden and the House,” a three-judge panel said in its decision. “That falls far short of meeting his burden and makes it impossible for this court to find any likelihood of success.”

Trump will likely appeal the decision to the Supreme Court, which could rule in a way that would provide legal clarity around the former president’s disputes with the select committee.

Meadows also sued the select committee earlier this month, challenging the panel’s subpoenas for his testimony and phone records. He argued that Biden’s waiver of privilege over Trump’s claims has thrown the dispute into a legal gray area. 

“As a result, Mr. Meadows, a witness, has been put in the untenable position of choosing between conflicting privilege claims that are of constitutional origin and dimension and having to either risk enforcement of the subpoena issued to him, not merely by the House of Representatives, but through actions by the Executive and Judicial Branches, or, alternatively, unilaterally abandoning the former president’s claims of privileges and immunities,” his lawsuit reads. “Thus, Mr. Meadows turns to the courts to say what the law is.” 

It’s still unclear whether the Justice Department will follow through on the House’s contempt referral or when a decision will be made. Bannon was indicted in November, three weeks after the House held him in contempt. 

Meadows has cooperated with the committee to a degree. He turned over reams of documents to the committee, including a number where he made no claims of privilege — a key detail to the committee in determining to move forward in referring him to DOJ for prosecution. 

Earlier this week, Jan. 6 committee Chair Bennie Thompson (D-Miss.) blasted Meadows for promoting his new book that goes over many matters the committee is investigating while refusing to speak to them. 

He criticized him for failing to appear and answer questions about a number of issues beyond the bounds of executive privilege, including his conversations with state officials about election results, including in Georgia, and his text exchanges with lawmakers.

“It’s hard to understand how he himself can argue something is not privileged and then not answer questions about it,” Shaub said. 

“That’s what the committee said, and I think that’s what the Justice Department will argue,” he said.

Also undercutting Meadows executive privilege arguments is an October letter included in his contempt report from the Biden White House determining that “an assertion of privilege is not justified.” 

“It is well established in law and in precedent that executive privilege is a presidential power only. It belongs to the incumbent who was the only person who has the Article II based powers of the presidency,” said Mark Rozell, a professor at George Mason University and an author of a book on executive privilege. 

“So it is an incredible stretch, to say the least, to make the argument that the former president would have precedence over the incumbent in making a claim of executive privilege and an even greater stretch to claim that the White House aides of the ex-president can unilaterally claim executive privilege and refuse to testify or turn over documents,” he said.