It’s been nearly four months since lawmakers also voted to despise former White House chief of staff Mark Meadows, a gripe the Justice Department over took no action.
As the midterms approach and the congressional committee tries to wrap up its work, a growing chorus of Democrats say justice officials must indict Navarro, Scavino and Meadows, or risk sending the message that a subpoena to appear from Congress does not make sense. Rep. Adam B. Schiff (D-California), a member of the committee, said the lack of indictment would “eviscerate oversight of Congress, especially oversight of a corrupt executive.”
But legal analysts said the situation was a bit more complicated. While justice may ultimately bring charges against former White House aides, they say, the department must first address several issues: the aides’ claim executive privilege; the department’s own legal opinions that offer these individuals broad protection from being required to appear before Congress; and the precedents that the indictments might set in initiating other criminal cases.
Federal prosecutors criminally charged former White House chief strategist Stephen K. Bannon with contempt in November, less than a month after the House fired him. But Bannon had stopped working for President Donald Trump long before Jan. 6, 2021.
Analysts say those who were still employed by the The White House that preceded the riot – like Meadows, Navarro and Scavino – have at least somewhat plausible claims that they cannot be compelled to testify, which could make it harder to bring charges against them. That’s because Trump can argue that their conversations should be protected by executive privilege.
The Justice Department has historically defended the executive’s right to assert executive privilege, and previous Justice Department legal opinions have asserted that Congress cannot compel the president’s top advisers to speak. of their official duties. This case, however, is complicated because Biden — the current president — refused to assert the privilege, and the law is more obscure about a former president’s power to do so.
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Asked Wednesday about the delay in ruling on Meadows and criticism that the Justice Department’s lack of action could render congressional subpoenas toothless, Attorney General Merrick Garland said only that prosecutors would “follow the facts and the law.”
“We no longer comment on investigations,” Garland said.
Lawyers for Scavino and Meadows, as well as Navarro himself, said they could not speak to the committee because of Trump’s privilege claims. Mary McCord, a former Justice Department official who once headed the criminal division of the DCUS prosecutor’s office and assessed congressional referrals, said Meadows, Navarro and Scavino “at least held those high-level positions,” which made their cases “more complicated than Bannon”.
But based on what is publicly known so far, McCord said, their claims for possible testimonial protection might not be as strong.
McCord noted that the Supreme Court had recently denied Trump’s request to block the release of some of his White House files from the National Archives, and that Trump had not explained the damage the executive would suffer if his former aides were brought to testify.
If a court were to assess whether Trump’s former aides enjoyed valid privilege protection, it would have to weigh that harm against the harm the committee might suffer by not shedding light on what happened on Jan. 6.
“Right now, there’s nothing on that side of the ledger,” McCord said. “It’s all on the side of the House Select Committee.”
Merrick Garland’s goal is to restore the integrity of the Justice Department. His legacy will always be defined by Trump.
Some analysts have said they expect the Justice Department to charge anyone who refuses to comply with the Jan. 6 subpoenas — though it may take longer for some cases than for Bannon.
“I bet Garland will eventually indict, seek a grand jury indictment, because not to do so is to invite contempt of Congress without consequence, and I can’t believe Garland would condone that,” said New York University School of Law. Professor Stephen Millers.
But, added Gillers, Meadows, Navarro and Scavino could attempt “Trump’s established defense of running out of time,” raising various legal arguments at the Justice Department and in court that would delay any legal proceedings until a Republican administration takes over.
Of particular significance, analysts say, are past Justice Department legal guidelines, repeated in multiple jurisdictions, that Congress cannot compel aides to testify.
While the current president is the person who can assert executive privilege — and Biden has chosen not to do so for Trump aides — the law gives Trump some deference. For example, when the Supreme Court recently denied Trump’s request to block the release of some of his filings, Judge Brett M. Kavanaugh noted that Trump had the ability to invoke executive privilege, even though he had ruled against the former president for other reasons.
“A former president must be able to successfully invoke presidential communication privilege for communications that occurred during his or her presidency, even if the current president does not support the claim for privilege,” Kavanaugh wrote. “To find otherwise would nullify the executive’s privilege for presidential communications.”
His opinion illustrates the possibility that if Meadows, Navarro or Scavino are prosecuted, convicted and appeal the charges against them, the high court could ultimately rule in their favor, finding in part that the former president’s claims of privilege prevent them. to have to testify.
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McCord said Trump might be able to claim that forcing his aides to testify “would chill the discussion between high-level aides and the president in future presidencies.” But in this case, she added, “It’s just not a very compelling argument.”
McCord noted that Meadows, Scavino and Navarro refused to testify before the committee and declined particular questions on the basis of executive privilege. They also didn’t agree to ask questions and refuse to answer some on the grounds that it might incriminate them – something former Justice Department official Jeffrey Clark said he would do to the end of last year.
Schiff pointed out that the courts have not upheld the Department of Justice’s prior legal opinions on executive privilege. Even if they had, he argued, executive privilege does not prevent aides from having to discuss matters outside of their official duties.
McCord said senior officials would be mindful of the precedent they could set by prosecuting former high-level White House staffers for refusing congressional subpoenas — aware of the potential for investigations and summonses to hamper the functioning of the executive in the future.
“There is an institutional interest in protecting privilege in the right cases,” McCord said.
David Laufman, a former Justice Department official now in private practice who represented two Capitol police officers in congressional testimony about the Jan. 6 attack, said if he was still in the department he would ask probably the Office of the Legal Counsel to provide an opinion. on the assertion of executive privilege by former presidents and the risk of litigation that could arise from suing former aides.
But he added that he saw no privileges that former assistants could count on.
“It would seem odd that the Justice Department, after carefully reviewing the facts, would not proceed quickly with a criminal contempt of Congress prosecution,” Laufman said. “The Department of Justice must bring the same kind of urgency to charging decisions in this case as it would in other matters of compelling national interest – particularly when there is a threat for the homeland, which is precisely what is at stake here. ”
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While Meadows, Scavino and Navarro all held key White House positions during the events the committee is investigating, the Justice Department may have different considerations in each of their cases, analysts said. Meadows, for example, cooperated with the committee for a time – handing over thousands of documents, including personal emails and text messages, that his lawyers believed were not privileged – before finally refusing. to come and testify. Although Navarro was an adviser to the White House, his work was meant to center on commerce and manufacturing.
“A decision on each will be made on the merits of each individual case,” McCord said. “What they do at Meadows, they have to consider the impact it will have on the future. But that doesn’t mean that if you do one, you do them all. Or if you don’t, you don’t.
In 2008, the Justice Department dismissed a contempt complaint against President George W. Bush’s chief of staff, Joshua Bolten, and former White House attorney Harriet Miers, who had resisted subpoenas regarding the controversial forced resignations of American lawyers. In 2012, under President Barack Obama, the department declined to file contempt charges against Attorney General Eric Holder, who refused to turn over certain documents about the so-called Fast and Furious scandal, a gun sting at fire gone bad.
Bannon’s case, meanwhile, is still making its way through the court system. On Wednesday, a federal judge dealt a blow to his defense, ruling that Bannon could not claim he was simply acting on the advice of his attorney when he resisted his congressional subpoena.
Jan. 6 Committee Chairman Bennie G. Thompson (D-Miss.) told reporters Wednesday that the dismissals of Meadows, Scavino and Navarro were “very serious” cases of contempt. But he hesitated when asked about the importance of the decision whether to prosecute or not.
“We’ve now done everything we can do in terms of contempt — it’s now in the hands of the Justice Department,” Thompson said. “We still have a body of information that we gleaned from over 800 other witnesses.”