The Justice Department’s decision not to charge former White House chief of staff Mark Meadows or deputy communications director Dan Scavino with contempt of Congress is sending mixed messages about the extent those in the president’s inner circle can flout lawmaker subpoenas.
The Department of Justice sent a letter to the House saying it would not pursue contempt charges against the two men even as it filed charges Friday against Peter Navarro, a former White House economic adviser, for defying a subpoena from the House committee investigating the Jan. 6 attack on the Capitol.
It’s a decision that has left many wishing the DOJ would be more transparent in its rationale for charging some in Trump’s inner circle, but not others.
“I think it’s a disappointing decision by the Justice Department, and without understanding how they reach that decision, it leaves a lot of really troubling questions unanswered,” said David Janovsky, an analyst for The Constitution Project with the Project on Government Oversight.
The announcement from the DOJ ended months of speculation over whether the department would charge the two men, who were among the first subpoenaed by the committee, and leaves no further referrals in its queue.
U.S. Attorney Matthew Graves, in a letter to the House counsel, repeatedly notes the DOJ’s need to evaluate the “individualized facts and circumstances” of each case.
“Each referral has been analyzed individually based on the facts and circumstances of the alleged contempt developed through my office’s investigation,” he wrote in a letter first reported by The New York Times.
The Jan. 6 committee called the decision “puzzling” in a late Friday statement noting Meadows’s executive privilege claims are being litigated and asking the DOJ to provide “greater clarity on this matter.”
Meadows and Scavino presented very different cases to DOJ.
Meadows turned over reams of documents to the committee, including some 2,319 text messages. Though he balked before his scheduled deposition and filed a suit against the committee, Meadows’s materials have frequently been the basis for the panel’s subpoenas.
Scavino, in contrast, “has not produced a single document, nor has he appeared for testimony,” the select committee wrote in its report this spring.
Elie Honig, a former federal prosecutor, says the outcomes appear to show that the department was willing to credit even “partial cooperation” when deciding whether to bring charges against each of the four men.
“We know Meadows cooperated for a bit until he stopped and we know that Scavino’s lawyers at least went through the motions of negotiating with the committee,” Honig said.
Navarro and the other former White House staffer to be charged, Stephen Bannon, “both just basically defied the committee straight up,” Honig added.
There are also differences in how each contended with their assertion they should be immune from testifying due to executive privilege.
Bannon wasn’t an executive branch employee on Jan. 6, 2021, and Navarro advertised his missives on purported election fraud on his website and has written a book that delves into his role in the planning and coordination of Jan. 6.
While Meadows and Scavino appeared to have stronger claims of executive privilege, Honig said it would be “really problematic for DOJ to be crediting people for pretending to cooperate or halfway cooperating.”
Barbara McQuade, a former U.S. attorney, noted that the contempt statute requires proving intent, a high bar.
“That requires not just that you knew what you were doing, but that you knew what you’re doing was illegal. And so willfulness here requires that they knew with certainty that these defenses of executive privilege were bogus and would fail,” she said.
The DOJ is also bound by internal guidance that for decades has argued that the president’s close advisers are absolutely immune from congressional subpoenas.
“You’re supposed to refrain from criminal charges, which are kind of the nuclear option,” said McQuade, noting that the DOJ may wish to see how a civil case between Meadows and the committee resolves itself.
The guidance is designed to protect the institution of the presidency and its advisers so that they may give candid advice.
“It’s quite ironic that these guys would get that protection. They seem so undeserving when their efforts appear to be setting up to destroy the institution of the presidency,” she said.
But McQuade cautioned that the DOJ must also weigh the impact such charges could bring for its broader Jan. 6 investigation. While she doesn’t suspect Meadows or Scavino are currently cooperating with the DOJ, she noted that others like former Trump attorney Michael Cohen have talked tough only to later engage with the department.
“There’s the ‘Can we charge?’ question and then the ‘Should we charge?’ question,” she said.
“What do you really want to get from these people? Do you want their testimony? Or do you want to make an example of them and punish them … in a goal of deterring this kind of behavior in the future?” she asked.
The DOJ may see more value in Meadows and Scavino, who were some of Trump’s closest advisers. Even if the DOJ doesn’t plan to charge them with other crimes, they may have key testimony in other cases it may later wish to bring. Filing contempt charges against the duo would complicate that.
“It just gets really messy. You have to produce discovery. You have to give them every recorded statement you have of that person that might in any way relate to the prosecution. So there’s all kinds of complications that arise once you charge somebody,” McQuade said.
The lack of charges for Meadows and Scavino are likely to be something closely watched by five GOP lawmakers fighting their own subpoenas from the Jan. 6 panel.
“The moment they announced we’re not charging Mark Meadows that can be read as giving the green light to certain inner circle advisers that you can defy the committee without consequence too,” Honig said. “So I think perhaps DOJ wanted to put off sending that message until the last possible moment.”
The DOJ’s guidance on avoiding prosecution of close presidential advisers has long been controversial and yet to be fully resolved by the courts.
While it’s unclear how much of a factor that policy played in the department’s decisionmaking, Janovsky said the varying outcomes from the congressional contempt referrals is in line with how the DOJ has historically responded to legislative oversight.
“Unfortunately, I think it does kind of reinforce this notion that a lot of the time the Department of Justice is going to side with the executive branch over Congress and by extension the interests of the public,” Janovsky said. “And that, you know, DOJ has created a set of rules that protects these people.”
He added that it’s incumbent on federal prosecutors to explain how the law is being applied when it comes to senior White House officials.
“We need DOJ to explain what circumstances it thinks distinguishes these cases,” Janovsky said. “Because guessing from the outside ultimately only gets you so far.”