These newly released memoranda cover the scope and nature of executive privilege as well as the question of how constitutional disagreement between Congress and the executive branch about privilege can and should be resolved.
Jonathan Shaub is a contributing editor to Lawfare and an assistant professor of Law at the University of Kentucky J. David Rosenberg College of Law. He formerly served in the U.S. Department of Justice as an attorney-adviser in the Office of Legal Counsel and as a Bristow Fellow in the Solicitor General's Office.
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A recent Justice Department filing offers clues about why Peter Navarro faces prosecution for contempt of Congress but Mark Meadows and Dan Scavino do not, and it also raises questions about the department’s exercise of its prosecutorial discretion.
The oral argument took hours. The result is not hard to predict.
The contempt case against Bannon is actually more complicated than it looks.
The Jan. 6 committee should not rush to hold Mark Meadows in contempt. It should instead take the time to develop a record that leaves him no wiggle room to hide behind the ambiguities inherent in executive privilege.
After my post went live on Oct. 18, two significant developments occurred in the prospects of a contempt prosecution of Steve Bannon.
If the Jan. 6 Committee eliminates any potential claim of executive privilege, the challenges of prosecuting Bannon and other former executive branch officials may be facilitated.