Jan. 6 panel faces a different legal test to refer Mark Meadows for criminal contempt
In less than a month's time, the Democratic-led House select committee investigating the January 6th attack issued a criminal contempt referral for Trump ally Steve Bannon.
But the panel has taken at least twice as long to decide if they'll take similar steps against ex-White House Chief of Staff Mark Meadows.
The lawmakers have warned Meadows repeatedly that they could issue a criminal contempt referral if he does not ultimately cooperate.
"Mr. Meadows's actions today — choosing to defy the law — will force the Select Committee to consider pursuing contempt or other proceedings to enforce the subpoena," the panel's Chairman Bennie Thompson, D-Miss., and ranking member Liz Cheney, R-Wyo., said in a joint statement after Meadows failed to show up for a Nov. 12 deposition.
Still, the panel has not yet acted on that statement, in part, because lawmakers are facing a bigger legal test with Meadows than they did with Bannon.
Bannon defied the panel's Sept. 23 subpoena outright, while Meadows and his lawyer engaged in talks with the committee for several weeks.
And Meadows, unlike Bannon, was a member of the administration on Jan. 6, and that could allow some immunity based on executive privilege which prevents the disclosure of certain presidential documents and records.
Still, legal experts said there is a very strong case for the panel to pursue a referral against Meadows for criminal contempt of Congress.
If the committee took that step, it would mark the first such case for a former member of Congress.
"It's not a game"
House select committee member Rep. Jamie Raskin, D-Md., has a message for witnesses subpoenaed in the investigation into the January Six attack.
"For us it's not a game," Raskin recently told reporters. So far, 45 individuals and groups have been subpoenaed by the committee.
The Maryland Democrat notes a congressional resolution has charged the committee with investigating the deadly siege, and putting together a comprehensive report for the American public.
Raskin said by referring Bannon for criminal contempt — charges that Bannon is fighting — the hope is all other witnesses will comply.
"No one is going to operate with impunity here and in contempt of the law," he said.
Lawmakers argue that executive privilege is in the purview of the sitting president, not the former ones. President Biden waived executive privilege claims in Meadows' case.
Still, Meadows, though his lawyer, is still using executive privilege as his reason for not cooperating with the committee.
Former president Trump directed Meadows and others not to comply with the subpoenas, saying he still has claim to the legal privilege to shield presidential records and conversations. In October, Trump filed a lawsuit against the committee to block the National Archives from releasing thousands of pages of presidential records.
The case is now before the U.S. Court of Appeals in the D.C. Circuit after a lower court ruled against Trump. Meadows' attorney George Terwilliger noted that's a key concern that has to play out before his client can answer any questions.
"Under Supreme Court precedent, President Donald Trump also has a voice to be heard on claims of executive privilege arising from his tenure, and he has instructed Meadows to maintain the privilege," Terwilliger said in a Nov. 13 op-ed in the Washington Post. "My client thus finds himself caught between two rocks (Congress and the Biden administration) and a hard place (instructions from the president he served.)"
"There is no absolute immunity"
Meadows joined the Trump administration in its final 10 months, after he served as a House Republican member representing North Carolina and chaired the conservative Freedom Caucus.
California Democrat Zoe Lofgren, another member of the House panel, said Meadows' seven years in Congress are not part of a political calculation.
"I knew and served with Mark, we got along reasonably well when he was here, although we didn't agree on a lot of things. That has nothing to do with anything," Lofgren said. "We're trying to find out what he did in his official capacity after he left the House, what role he played, what he knew, what he saw about the events of the 6th, and the events leading up to the 6th."
Lofgren disagrees with claims from Meadows and his lawyer that executive privilege prevents him from answering any of the committee's questions.
"There is no absolute immunity, which is basically what he seems to be asserting," Lofgren said.
Meadows and his lawyer's engagement bought time to stave off a criminal contempt referral — for now.
That also sets Meadows apart from Bannon, said Kim Wehle, a University of Baltimore law professor.
"They're doing enough of a dance, to say, 'Listen, we're trying in good faith,'" Wehle said. "Bannon is bad faith. Arguably, Meadows is good faith. That's the difference."
Wehle also noted that unlike Bannon, Meadows could have some immunity as a member of the administration on January Sixth.
University of Kentucky law professor Jonathan Shaub agrees.
Shaub said that could be especially true when it comes to Meadows disclosing some of his past conversations with Trump in his role as the president. On the other hand, Bannon, the former Trump strategist, had not been a part of the administration for years.
"The privilege claims that Meadows is going to raise are much stronger than Bannon's," Shaub said.
But that doesn't mean Meadows can dodge all the panel's questions, Shaub added.
For example, lawmakers are asking Meadows if he used a personal email or cell phone on January Sixth. Legal analysts say that's not shielded from disclosure.
"It's more evidence that this was not official executive branch activity and therefore is not subject to executive privilege," said Norm Eisen, a former House impeachment lawyer. "It was campaign-related activity, engaged in Meadows' personal capacity, not official capacity."
Meanwhile, Eisen said its clear both the committee and Meadows are bulking up their defenses.
"It is more complex. And that's why you're seeing both sides attempting to build the best possible record they can," Eisen said.
Shaub and others say evidence of Meadows' unanswered questions could give the committee the ammunition it needs to refer him for contempt, but the dilemma requires more deliberation from lawmakers than it did for Bannon.
"They're going to try to make the case as ironclad as possible," Shaub said.
Regardless, Raskin said one major point remains: executive privilege does not cover insurrections. If it did, it would mean there's a legal shield to protect insurrectionary activity in the country, Raskin argued.
"Do we really want to say that there's an executive privilege for people to try to overthrow the U.S. government and then assert an executive privilege to prevent evidence from being produced in such a case?" Raskin asked. "It's just ridiculous. I mean, it makes the Constitution sound like some kind of death warrant for the democracy — and we know it's not that."
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