The January 6 Project

The Jan. 6 Committee Should Take Its Time With Mark Meadows

By Jonathan Shaub
Tuesday, November 2, 2021, 1:07 PM

President Trump’s former White House chief of staff, Mark Meadows, has until recently taken a more solicitous approach toward the House select committee investigating the Jan. 6 attack than have other Trump associates and officials. But now, the “engagement” between Meadows and the committee has apparently hit a rocky stretch. Meadows has remained loyal to Trump, and Trump has not minced words when it comes to his own view of the committee’s endeavor. Trump has also sued the committee, its chairman, and the National Archives to stop the release of presidential records, including handwritten notes from Meadows. So it’s to be expected that Meadows is following his former boss’s lead and now adopting a more combative posture.

Meadows is also, once again, following in the footsteps of Steve Bannon. Bannon, before Meadows, served as one of Trump’s closest advisers. And Bannon has completely stonewalled the Jan. 6 committee and, as a result, been held in contempt of Congress. All eyes are now on the Justice Department as it determines whether to prosecute Bannon for contempt. Meadows will undoubtedly be watching as well. But Meadows, unlike Bannon, does not seem ready to make contempt straightforward by flatly refusing to cooperate in any way. 

The committee will need to make a choice about Meadows and other officials who remain loyal to Trump but have inside knowledge of the events leading up to and on Jan. 6. Does it want to make an example out of them, make a show of holding them in contempt, publicly and loudly proclaim its intent to enforce the subpoenas, and then sit back and hope the Justice Department prosecutes? Or does it want to do everything in its power to remove obstacles that could trip up the Justice Department when it considers a potential contempt prosecution by ensuring the witnesses have little to no defense? The former path is the more straightforward and, likely, more appealing to members of Congress hesitant to acknowledge any weaknesses in their institutional authority. But the latter path is likely to be more effective.

In many ways, Bannon and Meadows are similarly situated—as former Trump advisers who are refusing to cooperate fully with the committee—and thus many of the same principles apply. As I explained with respect to Bannon, the Justice Department will have to consider all the potential obstacles to prosecution once the House has sent a referral for contempt of Congress. It will do so according to normal prosecutorial guidelines and policy, but it will also have to take into account the executive branch’s institutional interests such as executive privilege.

Writing about Bannon, I proposed one mechanism for eliminating any potential privilege claim that Bannon could raise: limiting the subpoena to conversations with Trump unrelated to Trump’s official duties as president. Executive privilege shields only conversations about official duties. Because Bannon was a private citizen at the time and because the most relevant conversations would relate to the political rally on Jan. 6, Bannon’s testimony almost certainly did not implicate the official duties of the presidency. President Biden made it easier for the committee to move forward to contempt against Bannon by informing Bannon’s attorney that his testimony did not implicate executive privilege. 

Given that the current president is generally understood to have the final say on whether to assert or waive executive privilege against a congressional subpoena, Biden’s statement clears the way for the Justice Department to prosecute Bannon without concern about institutional interests in privilege. Trump, of course, contests Biden’s authority to make this type of waiver, which is the basis of his pending lawsuit. Nevertheless, the Justice Department will follow the current law and its internal doctrine, which gives priority to the incumbent president’s views. Moreover, because Bannon refused to even show up as required by the committee’s subpoena, he cannot rely on privilege as a defense for that noncompliance. Witnesses wishing to assert privilege cannot simply refuse to attend a deposition; they must show up and claim privilege in response to questions that implicate it. Refusing to show up at all is itself grounds for contempt, whether privilege would be available or not.

Meadows is not likely to make it so easy. Meadows was not only—unlike Bannon—a government official at the relevant time. He was, as a formal matter, the government official closest to the president. And although Congress and the executive branch agree on almost nothing related to executive privilege, they do agree that conversations between the president and his closest advisers about the president’s official duties may be protected by executive privilege. The Supreme Court found these conversations “presumptively privileged” in Nixon v. United States. That presumption can be overcome by a substantial showing of need, of course—as it was in Nixon. But conducting that balancing test requires knowing the nature of the specific information at issue.

Undoubtedly, some conversations within the scope of the subpoena that Meadows, as chief of staff, had with the president were about the president’s official duties, or at least arguably so. Accordingly, those conversations would fall within the presumptive privilege. Other conversations may relate only to the political or personal interests of Trump. Those conversations would not implicate executive privilege. But the border between a president’s official and political capacities—or “bodies”—is more of a gradient than a fixed line. For that reason, Biden is unlikely to issue a blanket waiver of privilege over Meadows’s testimony for everything responsive to the committee’s subpoena. When the Justice Department, with approval from the White House, authorized former officials to testify to the Senate Judiciary Committee about the department’s involvement in pushing the narrative that the 2020 election was fraudulent, the Justice Department carefully demarcated the scope of that testimony. And press accounts suggest the Justice Department did not hesitate to object when the questioning strayed even slightly from that scope. Biden also presumably does not know what Meadows knows or can testify to. It is difficult to decide whether to waive privilege when you are not privy to the potentially privileged information. In other words, it is unlikely that Biden will categorically declare that executive privilege does not apply to Meadows’s testimony the way that he did with Bannon’s testimony.

Without a categorical waiver of privilege from Biden over all the information responsive to the committee’s subpoena, the difficulties I identified in prosecuting Bannon for contempt will remain in any attempt to prosecute Meadows, namely that the Justice Department will have to determine what weight to give a former president’s assertion of executive privilege that has not been countermanded by the current president. Given that the Supreme Court has recognized some authority in a former president to assert executive privilege and given that the Justice Department has traditionally adopted broad interpretations of executive privilege, prosecution is difficult without some clarity about the applicability of privilege. And those difficulties will be much more prominent given Meadows’s official position as the president’s top adviser. 

There are better approaches, however. If the committee wants to maximize the threat of criminal prosecution to attempt to persuade witnesses such as Meadows to cooperate, it should act to eliminate the shadow cast by the ambiguities inherent in executive privilege. One strategy would be the one I described with respect to Bannon—reissue the subpoena but limit the scope of the testimony such that it, by definition, excludes executive privilege by focusing only on conversations unrelated to the president’s official duties. That would work best as a means for calling Meadows’s bluff and making it easy to prosecute if Meadows chose not to comply at all with the subpoena, as Bannon did. But that approach will prove more difficult if Meadows continues to “engage” with the committee by, for example, showing up and claiming that questions are outside the scope of the interview. There’s one other problem with that approach: The committee likely wants information Meadows has relevant to Trump’s official duties. With Bannon, limiting the scope of the interview to conversations related solely to the president’s personal and political capacity would be unlikely to restrict any relevant testimony and would make it easy for the Justice Department to prosecute given Bannon’s total noncompliance. The same is not necessarily true of Meadows.

But the committee could utilize the same principle to make it almost impossible for Meadows to hide behind executive privilege and straightforward for the Justice Department to bring contempt charges. The committee could construct a specific list of questions or narrower categories of inquiry most relevant to its investigation and then reissue a subpoena to Meadows requiring him to answer those questions or testify about those specific areas. Biden would almost certainly be able to waive privilege over the responses to most, if not all, of the questions or categories. He could look at each question or category and decide that the committee’s interest in the information outweighed the executive branch’s confidentiality interests in that information and that the public interest favored disclosure given the “extraordinary events” of Jan. 6. He has already used that rationale to authorize the testimony of the former Justice Department officials and the release of presidential records by the National Archives. Moreover, this approach could allow the committee additional time to collect information and documents and gain a better understanding of what information it wants from Meadows.

Law enforcement investigations typically do not start with interviews of the principal actors or suspects. The investigation starts by collecting as much information as possible so that the investigators know what to ask in the interviews, which also allows them to more easily catch a suspect in a lie by asking questions to which they already know the answers. During the James Comey investigation into Hilary Clinton’s email server, the FBI did not interview Clinton until the very end of the investigation. The same was true of Trump’s former national security adviser Michael Flynn. The FBI waited to interview Flynn until the end of its investigation. (Flynn’s failure to tell the truth in that interview is what led to his prosecution and guilty plea for false statements charges.)

The reason for waiting to interview one of the principal characters in an investigation is simple. The investigators want to make sure they know what to ask. They might have only one shot to question the individual, and they need to know all the angles and as much background as possible before deciding what to ask. Moreover, with that background, the investigators may better know when a witness is being forthcoming—because they have corroborating evidence already—and when the witness is not.

With respect to Meadows, that approach would be particularly appropriate given the shadow of executive privilege. As was true of Bannon, Meadows benefits from the broad scope of the current deposition subpoena. He can legitimately claim that material covered by the current subpoena implicates executive privilege. And given Meadows’s official position so close to the president, the Biden White House will have a harder time categorically waving privilege over his testimony. Without that waiver, prosecution is more difficult and perhaps impossible. 

If the Justice Department pursues Bannon’s prosecution, he will serve as an example the committee can hold up to recalcitrant witnesses. But that precedent may not be enough to sway Meadows given the material differences between their respective positions at the relevant time; the approach they took to negotiating—or not—with the committee; and, potentially, the communications from the Biden White House regarding their testimony. 

If the committee is really interested in maximizing the pressure on Meadows and eliminating any obstacles to prosecution for contempt, they should lay the groundwork for contempt by making their demands to Meadows as specific as possible. Such specificity would facilitate clear waivers of privilege by Biden. It would allow the White House to say with certainty that withholding the subpoenaed testimony would not be in the public interest because that interest favors a full accounting of the events of Jan. 6. And taking the extra weeks to reissue a more specific subpoena and demand compliance could have additional benefits. The additional time would allow the committee to better prepare for a Meadows interview by going through White House records (including notes from Meadows to Trump)—the first of which may be turned over on Nov. 12—and hearing from other, more cooperative witnesses.

Another similar approach based on the same principle would be for Biden to act first and prospectively waive privilege but not categorically. The White House could act proactively and authorize Meadows to testify about any information falling within detailed parameters. That would mirror the approach the White House and Justice Department took with respect to the former Justice Department officials and would be based on the same rationale. Biden’s authorization would expressly waive any potential privilege over testimony within its scope. 

That approach could make a contempt charge more difficult, however. The contempt charge would be for failure to comply with the subpoena itself, meaning Meadows could potentially argue privilege and use Biden’s more limited waiver as evidence that the subpoena was too broad. And the differing scope between the broad subpoena and the narrower White House authorization could provide fodder for an argument that particular questions exceeded the scope of the authorization. If the White House and the Office of Legal Counsel choose this route, the better option would be to have the committee first reissue a subpoena that parallels the scope of Biden’s waiver. Then executive privilege would not be a valid defense to any testimony within the scope of a more narrow, reissued subpoena. 

Either way, the committee may be better served to take its time with Meadows. Undoubtedly, the committee is anxious to flex its muscles. And Meadows is an appealing target. If the committee really wants to demonstrate its strength, however, it should develop a record that leaves Meadows no wiggle room to hide behind the ambiguities inherent in executive privilege. That would be time well spent.