Two cheers for the Justice Department’s indictment last Friday of former White House trade adviser Peter Navarro for contempt of Congress. Like the previously indicted Steve Bannon, Navarro had brazenly defied subpoenas from the House select committee investigating Jan. 6 and the alleged multistep conspiracy that led up to it.
But we’ll save the third cheer, because late Friday, we also learned that the DOJ is declining to prosecute former Trump chief of staff Mark Meadows and his former White House deputy chief of staff for communications Dan Scavino. Like Navarro, both men also refused to testify before Congress.
Some might call it the Friday night nonmassacre.
Some might call it the Friday night nonmassacre.
We can explain Attorney General Merrick Garland’s decision based on Justice Department opinions from its Office of Legal Counsel (OLC). Still, the central principle of our constitutional republic — that no one is above the law — calls for the Justice Department to at least clarify those opinions, to remove the shield of immunity that could protect future top-level White House advisers who engage in political activity.
To be fair, unlike Bannon and Navarro, Meadows half-cooperated with the committee. He gave it 2,319 text messages in response to subpoenas for documents.
Those texts provided investigators with a helpful conspiracy roadmap. Former Rep. Denver Riggleman, a Virginia Republican who has provided technical intelligence assistance to the committee, told us as much last week.
But the texts also appear to place Meadows smack in the middle of that conspiracy. And not having his testimony has certainly impeded the committee’s ability to unpack it. We shouldn’t be satisfied with partial compliance with these kinds of stakes.
(Quasi) compliance is only one reason Meadows and Scavino have escaped punishment, however. For another, we must look to the Justice Department OLC’s opinions, tracing back to a onetime assistant attorney general and eventual chief justice of the Supreme Court, William Rehnquist.
In his 1971 OLC memo to top Nixon aide and future convicted felon John Ehrlichman, Rehnquist wrote: “The President and his immediate advisers — that is, those who customarily meet with the President on a regular or frequent basis — should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee.”
The OLC has affirmed that opinion multiple times, during Republican and Democratic administrations. Most recently, President Donald Trump’s DOJ recycled it to uphold former White House counsel Don McGahn’s refusal to testify to Congress.
A similar negotiation might be happening behind the scenes with Meadows. Some even speculate (without evidence, to be clear) that he may be cooperating with the Justice Department’s own investigation. Even if that is happening, the DOJ should still amend its prior opinions, as suggested below.
Let’s first recognize that Rehnquist’s memo, and those that followed, emphasized that high-level White House officials are immune only when performing their “official duties.” Official duties do not include participating in partisan politics or criminal actions to overturn an election. Indeed, the Hatch Act makes it unlawful for federal employees such as Meadows to participate in election-related activities.
But that seems to be what Meadows did. He went to Georgia after the 2020 election to observe an audit of absentee ballots. He reportedly sent non-White House lawyer Cleta Mitchell there to investigate. He was on Trump’s infamous Jan. 2 phone call to Georgia Secretary of State Brad Raffensperger, in which Trump asked to Raffensperger to change the election outcome by “finding” thousands of extra votes.
Because so many of Meadows’ actions were not part of his “official duties,” the Justice Department has a strong argument that the OLC memos did not technically shield him from a congressional subpoena. But as University of Chicago law professor emeritus Albert Alschuler wrote in April, it could be troublesome for the DOJ to prosecute someone who said he had relied on its opinions and believed he had a right not to appear before Congress.
A jury or a court might side with Meadows even if he was mistaken in believing that the OLC opinions excused him from testifying.
A jury or a court might side with Meadows even if he was mistaken in believing that the OLC opinions excused him from testifying. At a trial, some jurors might agree with a defense argument that the Justice Department wasn’t clear enough in specifying what testimony Congress could compel someone in Meadow’s position to testify about.
To avoid this hazard going forward, the Justice Department should issue a new OLC opinion in light of the Meadows case. Chicago’s Alschuler points out that two federal courts have expressly rejected the OLC’s position on senior White House aide’s immunity to subpoenas. He argues that Garland should rescind the opinions setting out that view.
That, however, is the kind of institutional about-face Garland might prefer to avoid. Former judges like him disfavor overturning precedent. Plus, with Republicans seemingly ready to weaponize congressional investigations if they prevail in the midterms, Garland may be wary of eliminating protections.
A middle ground would be to write a new opinion that eliminates any ambiguity by stating expressly that high-level presidential advisers who engage in political activity on the job must testify about it if congressional committees subpoena them to do so.
No one is above the law. Thus, the Justice Department should issue a new OLC opinion to reinforce America’s commitment to our constitutional system of checks and balances.