So Why Didn’t They Indict Meadows and Scavino for Contempt of Congress, like they did Navarro?
A lot of folks are happy that Peter Navarro was indicted for contempt of Congress. But they are also furious that the DoJ appear to have given Mark Meadows and Dan Scavino a pass on similar misdemeanor contempt charge—and they are out for Merrick Garland’s head again.
Okay, so deep breath moment. Let’s unpack some of this.
The Department informed the January 6 Committee yesterday after arresting Navarro that it considered the matter closed as to those two other Trump officials and would not be pressing charges for their failure to appear before Congress. “Based on the individual facts and circumstances of their alleged contempt, my office will not be initiating prosecutions for criminal contempt as requested in the referral against Messrs. Meadows and Scavino,” wrote Matthew M. Graves, the U.S. attorney for D.C., to the general counsel of the House. “My office’s review of each of the contempt referrals arising from the Jan. 6 committee’s investigation is complete.”
The Committee is clearly frustrated by this. It responded that it found the decision to reward Meadows and Scavino for their continued attack on the rule of law “puzzling.” It’s clear that both Meadows and Scavino have highly relevant information that the Committee wishes it could hear or obtain directly from them. So why allow them to skate?
There are a few possible reasons for the Department’s decision. One is that the DoJ believes the two of them have some kind of general immunity when it comes to subpoenas, or that executive privilege somehow absolutely shields them from testifying and producing requested documents. The D.C. Circuit disagrees with this because, in its view, it’s the current president who hold the privilege, not the former. So it’s hard to see how the DoJ could have reached a broad contrary conclusion as to the legal argument. Plus, the Committee has noted that this is still a matter of litigation, so they argue that the Justice Department should not have closed those matters before a final judicial determination on executive privilege is reached. No one is above the law, as the Committee pointed out.
Another reason for the non-charge, and the one I’m leaning toward, is that Meadows and Scavino, as former employees in the direct chain of authority with the White House, stand in a different relationship when it comes to the Executive branch than, say, Steve Bannon who wasn’t employed at the time or Peter Navarro who wasn’t really in his lane and waived his right to claim privilege by blabbing on cable news at every turn. Further, both Meadows and Scavino negotiated for weeks with the Committee but ultimately failed to reach an agreement, even though Meadows initially cooperated and turned over some 9,000 documents to the Committee. The DoJ may have concluded that, in this case, there was a good faith effort by these two witnesses to cooperate, even if the Committee strongly disagrees, and it could thus never prove that Meadows and Scavino *willfully* refused to appear.
The Department’s letter to the Committee states this rather plainly. “Upon receiving each referral, my office conducted a thorough investigation and analysis of the individualized facts and circumstances surrounding each contempt allegation to determine whether to initiate a criminal prosecution,” Graves wrote. “Those investigations and analyses were conducted by and supervised by experienced prosecutors. Each referral has been analyzed individually based on the facts and circumstances of the alleged contempt developed through my office’s investigation.”
There’s a wrinkle here, too, that’s worth noting. It’s generally against DoJ policy to charge criminally when there are other ways a matter might be resolved. Remember, Meadows already filed a *civil* action to oppose the subpoena, which may still result in him having to appear if he loses the battle there. That case is pending. The DoJ would rather have that happen than put its finger on the scale now. If the judge sides with the Committee, it could still order Meadows to appear, but if the judge ultimately agrees with Meadows, then there was no way anyway that a criminal case could have been won anyway.
The DoJ also may have determined, with pretty solid reasoning, that it doesn’t want to subject *future* White House employees, particularly the Chief of Staff and his deputy, to the power of Congressional subpoenas, as this would make any advice between the Chief of Staff and the President subject to discovery and therefore harm the ability of advisors to speak openly. With the Republicans poised to take back the House in November, we may in the end be grateful that the subpoenas that will begin to issue from the GOP-controlled House committees to the Biden White House (over Covid, Afghanistan, inflation, Ukraine, you name it) will have less force and effect as a result. This policy is supported by an Office of Legal Counsel opinion from 1984 that says executive branch officials who rely on executive privilege should *not* be charged with contempt of Congress precisely in order to encourage candid communications between the president and his advisers.
Another possible reason they aren’t being prosecuted while Navarro and Bannon are under indictment could prove more interesting. It’s possible that both men are actively cooperating with the DoJ, and that part of their deal is that they won’t face misdemeanor charges for failure to appear before Congress under a subpoena. However, as many veteran prosecutors have noted, it’s not like the Department to hold back on any charges just because someone is now cooperating. The general practice is to make the charge and then use it as leverage for cooperation. So I very much doubt a cooperation agreement is what is shielding them from contempt charges. On the other hand, if they are already *negotiating* with the Department, an ill-timed criminal charge could upend that process. Or perhaps (and it’s a big perhaps) the two are considered possible targets of prosecution for the larger conspiracy. If so, it would makes no sense to file misdemeanor charges now when the Department has far bigger goals in mind.
Another thought: Trump allies and aides normally gloat whenever they can, especially when they’ve scored some sort of victory over the Dems and the “RINOs.” Yet Meadows and Scavino are being awfully quiet, at least so far. They haven’t called a press conference or gone on Fox News or Newsmax to trumpet about how they are vindicated and owned the libs who are running an “illegitimate witchhunt.” That tells me there may be more to this than the DoJ simply declining to prosecute them for contempt. So far, the only statement from either is from Meadows’ lawyer, who said simply that the statement by U.S. Attorney Graves speaks for itself.
So, two things can be true. The DoJ may have concluded that the case against Meadows and Scavino isn’t strong on the question of their willful refusal to comply with the subpoena, and that it would be unwise in any event and a violation of the DoJ policy around the separation of powers to allow whoever is in control of Congress to subpoena the White House Chief of Staff and his deputy for testimony. That said, it may *also* be actively negotiating with Meadows and/or Scavino or already even have their active cooperation, separate and apart from the question of their contempt referrals being declined by the Department. The longer they stay quiet about the decision by the Department to deny Congress’s referral and not file contempt charges, the more likely it seems that something else is up.
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Sources
https://www.nytimes.com/2022/06/03/us/politics/peter-navarro-contempt-jan-6.html
100% agree. I think there's more we don't know...
Let's hope that the "something much bigger is cooking on the back burner" speculation is correct.