Two cheers for the Justice Division’s indictment final Friday of former White Home commerce adviser Peter Navarro for contempt of Congress. Just like the beforehand indicted Steve Bannon, Navarro had openly defied subpoenas from the Home choose committee investigating Jan. 6 and the alleged multistep conspiracy that led as much as it.
However we’ll save the third cheer, as a result of late Friday, we additionally realized that the DOJ is declining to prosecute former Trump chief of employees Mark Meadows and his former White Home deputy chief of employees for communications Dan Scavino. Like Navarro, each males additionally refused to testify earlier than Congress.
Some may name it the Friday evening nonmassacre.
Some may name it the Friday evening nonmassacre.
We will clarify Lawyer Basic Merrick Garland’s determination primarily based on Justice Division opinions from its Workplace of Authorized Counsel (OLC). Nonetheless, the central precept of our constitutional republic — that nobody is above the legislation — requires the Justice Division to no less than make clear these opinions, to take away the protect of immunity that would shield future top-level White Home advisers who have interaction in political exercise.
To be truthful, in contrast to Bannon and Navarro, Meadows half-cooperated with the committee. He gave it 2,319 textual content messages in response to subpoenas for paperwork.
These texts offered investigators with a useful conspiracy roadmap. Former Rep. Denver Riggleman, a Virginia Republican who has offered technical intelligence help to the committee, informed us as a lot final week.
However the texts additionally seem to position Meadows smack in the course of that conspiracy. And never having his testimony has definitely impeded the committee’s capability to unpack it. We shouldn’t be glad with partial compliance with these sorts of stakes.
(Quasi) compliance is just one motive Meadows and Scavino have escaped punishment, nevertheless. For one more, we should look to the Justice Division OLC’s opinions, tracing again to a onetime assistant lawyer normal and eventual chief justice of the Supreme Court docket, William Rehnquist.
In his 1971 OLC memo to prime Nixon aide and future convicted felon John Ehrlichman, Rehnquist wrote: “The President and his quick advisers — that’s, those that typically meet with the President on a daily or frequent foundation — needs to be deemed completely immune from testimonial compulsion by a congressional committee. They not solely is probably not examined with respect to their official duties, however they could not even be compelled to look earlier than a congressional committee.”
The OLC has affirmed that opinion a number of instances, throughout Republican and Democratic administrations. Most not too long ago, President Donald Trump’s DOJ recycled it to uphold former White Home counsel Don McGahn’s refusal to testify to Congress.
McGahn in the end negotiated an settlement with Congress and gave an interview about having resisted Trump’s makes an attempt to get him to manufacture proof with a purpose to impede the Mueller investigation.
An analogous negotiation is likely to be occurring behind the scenes with Meadows. Some even speculate (with out proof, to be clear) that he could also be cooperating with the Justice Division’s personal investigation. Even when that’s occurring, the DOJ ought to nonetheless amend its prior opinions, as recommended beneath.
Let’s first acknowledge that Rehnquist’s memo, and people who adopted, emphasised that high-level White Home officers are immune solely when performing their “official duties.” Official duties don’t embrace collaborating in partisan politics or legal actions to overturn an election. Certainly, the Hatch Act makes it illegal for federal staff equivalent to Meadows to take part in election-related actions.
However that appears to be what Meadows did. He went to Georgia after the 2020 election to observe an audit of absentee ballots. He reportedly despatched non-White Home lawyer Cleta Mitchell there to research. He was on Trump’s notorious Jan. 2 telephone name to Georgia Secretary of State Brad Raffensperger, during which Trump requested to Raffensperger to alter the election end result by “discovering” 1000’s of additional votes.
As a result of so a lot of Meadows’ actions weren’t a part of his “official duties,” the Justice Division has a powerful argument that the OLC memos didn’t technically protect him from a congressional subpoena. However as College of Chicago legislation professor emeritus Albert Alschuler wrote in April, it might be troublesome for the DOJ to prosecute somebody who mentioned he had relied on its opinions and believed he had a proper to not seem earlier than Congress.
A jury or a court docket may aspect with Meadows even when he was mistaken in believing that the OLC opinions excused him from testifying.
A jury or a court docket may aspect with Meadows even when he was mistaken in believing that the OLC opinions excused him from testifying. At a trial, some jurors may agree with a protection argument that the Justice Division wasn’t clear sufficient in specifying what testimony Congress may compel somebody in Meadow’s place to testify about.
To keep away from this hazard going ahead, the Justice Division ought to difficulty a brand new OLC opinion in gentle of the Meadows case. Chicago’s Alschuler factors out that two federal courts have expressly rejected the OLC’s place on senior White Home aide’s immunity to subpoenas. He argues that Garland ought to rescind the opinions setting out that view.
That, nevertheless, is the form of institutional about-face Garland may choose to keep away from. Former judges like him disfavor overturning precedent. Plus, with Republicans seemingly able to weaponize congressional investigations in the event that they prevail within the midterms, Garland could also be cautious of eliminating protections.
A center floor can be to jot down a brand new opinion that eliminates any ambiguity by stating expressly that high-level presidential advisers who have interaction in political exercise on the job should testify about it if congressional committees subpoena them to take action.
Nobody is above the legislation. Thus, the Justice Division ought to difficulty a brand new OLC opinion to bolster America’s dedication to our constitutional system of checks and balances.
