Published by The Lawfare Institute
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On June 3, the Department of Justice revealed an indictment charging former Trump adviser Peter Navarro with contempt of Congress for his refusal to comply with a subpoena issued by the House select committee on the Jan. 6 attack on the Capitol. That announcement mirrored the department’s November 2021 decision to bring the same charges against Steve Bannon, whose trial began recently. But later that same day, the department informed the committee that it would not bring contempt charges against Trump’s former chief of staff, Mark Meadows, or his former deputy chief of staff for communications, Dan Scavino. The House had referred all of these former Trump advisers to the department for prosecution for contempt after each refused to comply with subpoenas for documents and testimony issued by the Jan. 6 committee. The committee found the department’s decision “puzzling” and expressed its “hope” that the department would “provide greater clarity” about its rationale in the future. Committee member and former prosecutor Rep. Adam Schiff called the department’s decision not to prosecute Meadows and Scavino “deeply troubling.” Schiff explained that all three former officials had relevant information about the events of Jan. 6 and had similarly refused to cooperate with the committee.
On July 15, the Justice Department’s decision became even more perplexing. Meadows earlier filed a civil suit against the committee seeking to justify his noncompliance—and at the invitation of the judge overseeing the suit the department filed a brief on the controversial doctrine of testimonial immunity for senior presidential advisers. The brief sets forth the Justice Department’s position that Meadows is not immune from compelled testimony, thus undermining the principal defense he and his attorney had proffered against a contempt charge. The department’s brief emphasizes the “critical importance” of the committee’s work and “the importance of [Meadows’s] testimony to the Select Committee’s investigation.” Yet, the department’s earlier decision not to prosecute Meadows or Scavino appears at odds with these exhortations. The failure to prosecute Meadows and Scavino rewards the former advisers’ disregard for the committee and its mission. And it renders the maxim at the heart of the committee’s investigation—“No one is above the law”—empty rhetoric. Unsurprisingly, the Justice Department’s decision has also reportedly led to tension with the committee. Some members have adopted a less cooperative stance toward sharing information with the department because of its refusal to vindicate the committee’s subpoenas through criminal contempt.
What explains the Justice Department’s mixed decision on prosecuting Navarro, Meadows, and Scavino? How should Congress and the country understand the department’s actions when considering future actions? Individuals such as Pat Cipollone, Trump’s former White House counsel, have undoubtedly weighed the Justice Department’s actions in their calculus of how to respond to the committee’s subpoenas, as will future congressional subpoena recipients. And even though he ultimately decided to comply, mostly, with the committee’s subpoena, Cipollone likely could have refused to comply without fear of prosecution given the precedent set with Meadows and Scavino. But more than a month later, there is still little to no direct information about the basis for the decision, aside from the Justice Department’s cryptic statement in its letter to the committee that its decision was “based on the individual facts and circumstances of their alleged contempt.”
Prior to the Justice Department’s recent brief, we theorized about the department’s decision. We thought perhaps the nuances of the doctrine of testimonial immunity—developed and expanded by the Justice Department’s Office of Legal Counsel (OLC)—could alone explain the split decision based on a conclusion that Meadows and Scavino enjoyed immunity but Navarro did not. We were wrong. That explanation may still form part of the decision. But in light of the Justice Department’s filing concluding that Meadows is not immune (an analysis that applies equally to Scavino), the immunity doctrine alone cannot explain why Meadows and Scavino were not prosecuted.
Instead, given the evidence from the recent brief on immunity, past OLC experience, and ongoing arguments in the Bannon trial, the distinction between Navarro and Meadows/Scavino may be driven not by obscure constitutional doctrines about the power of Congress to subpoena White House advisers, but by the foundational question all prosecutors ask before bringing a case: “Can we convict this defendant?” Our best guess is that the Justice Department prosecutors thought Meadows and Scavino had a viable affirmative defense to prosecution for contempt of Congress. But Navarro did not.
The reason Navarro lacked a viable defense could be grounded solely in OLC’s immunity doctrine. We discuss this as the potential “plausibility distinction” below, a theory that the department concluded that Navarro had no plausible claim to immunity—and thus no defense—but that Meadows and Scavino did have such a claim. But the more likely explanation, what we call the “directive distinction,” is far simpler. Navarro never hired an attorney to represent him in his interactions with the committee. As a result of that failure, no one ever took the steps to protect Navarro from a contempt prosecution that the attorneys for Meadows and Scavino took to protect their clients. Navarro, unlike Meadows and Scavino, never received a letter from Trump’s lawyer purporting to direct him not to comply with the committee’s subpoena on the basis of immunity. He never hired a lawyer to recognize the value of such a letter. Meadows and Scavino did. That may have made all the difference, providing Meadows and Scavino with a defense that they reasonably relied on the authority of a former president to direct them to assert immunity (an authority that remains unsettled) and leaving Navarro defenseless.
If our theory is correct, the Justice Department’s clear statement in its Meadows brief that testimonial immunity does not apply means that, from this point forward, no senior adviser to Trump—including Meadows or Scavino—has a viable defense to contempt for refusing to comply with the committee’s subpoenas. They can no longer make any plausible claim that a government official or entity has authorized their actions. In other words, if Meadows and Scavino had been held in contempt after the department filed its brief, they would have no defense. Thus, if the committee reissued subpoenas for Meadows and Scavino and they again refused to comply and were again held in contempt—the Justice Department would now be willing to refer them to a grand jury for prosecution for contempt of Congress.
That rationale is our best guess about the legal explanation for the department’s decision. We may be, and likely are, wrong again. Prosecutorial decisions are not always based on legal defenses; pragmatic considerations play a role as well. As discussed later on, there is an open and disputed question about how much discretion the Justice Department has to decline to prosecute an individual for contempt of Congress, particularly when that decision is based on pragmatic considerations. And, to our knowledge, the Justice Department has never declined to prosecute for contempt of Congress absent a constitutional bar to such a prosecution, such as executive privilege, testimonial immunity, or the Fifth Amendment privilege against self-incrimination. The department’s decision not to prosecute Meadows and Scavino thus breaks new ground. And if that decision was based not on potential legal defenses but, instead, on pragmatic reasons, the department’s decision stretches its discretion to decide whether to prosecute individuals for contempt of Congress even further and raises significant questions about the department’s role in prosecuting contempt cases.
Assuming such pragmatic considerations do play a role, however, two considerations in particular may have informed the department’s decision. First, the team at the Justice Department working on criminal prosecutions related to Jan. 6 may have considered the usefulness of a criminal contempt charge against Navarro, who has been subpoenaed to testify before the grand jury investigating those potential charges. The recent revelation of a plea deal offer to Navarro—one he rejected—may offer some additional evidence in favor of this consideration. Second, the coming election and the looming specter of subpoenas issued by new Republican committee chairs demanding the testimony of Biden’s current or former advisers about everything from the Afghanistan withdrawal to the administration’s coronavirus response to Hunter Biden may have—consciously or not—swayed the administration in favor of proceeding more cautiously to ensure Biden officials retain viable defenses to contempt charges if the tables are turned in 2023.
OLC’s Immunity Doctrine and a Potential Legal Rationale for Nonprosecution
OLC’s immunity doctrine has two requirements: First, the individual at issue must be a “senior” or “immediate” presidential adviser, a person in a high enough position to be seen as the president’s “alter ego.” Second, the immunity exempts senior advisers from testifying only about “matters related to their official duties.” If those requirements are satisfied, a senior adviser is absolutely immune from compelled congressional testimony. In other words, an adviser does not even have to show up and assert privilege in response to a congressional subpoena. Despite confusion in news accounts, the immunity doctrine—not executive privilege—is at the core of the contempt charge and potential prosecution for Navarro, Meadows, and Scavino. All three refused to appear before the panel and testify, and not even the broadest conception of executive privilege supports that kind of total noncompliance with a testimonial subpoena. Instead, a witness must appear and assert privilege with respect to specific questions. Indeed, the district court overseeing Bannon’s criminal trial recently chided Bannon’s attorney about his inattention to that fundamental principle. Only the immunity doctrine allows a witness not to show up at all.
In the past, OLC has extended absolute immunity to current and former advisers to a sitting president, including Trump’s former White House counsel, Don McGahn. But in its recent filing, the Justice Department made clear for the first time publicly that advisers to former presidents do not enjoy that absolute immunity. Instead, the department informed the court that senior advisers to a former president are entitled only to a kind of “qualified immunity” that, unlike absolute immunity, must take into account the interests and needs of Congress. Applying judicial precedents weighing the balance of power between the executive and legislative branches, the department concluded that the qualified immunity Meadows enjoyed was overcome by the extraordinary circumstances of Jan. 6 and the committee’s compelling need for information that only Meadows could provide. As a result, the Justice Department informed the court that it did not matter what authority Trump, as a former president, had to direct former advisers not to testify, though it did suggest that a former president lacked such authority. Because Meadows enjoys only qualified immunity that is overcome by the committee’s need, he has no immunity and no basis on which to refuse to testify even if Trump, as former president, retained authority to instruct immune advisers not to testify and had instructed Meadows not to do so.
The Justice Department’s brief resolved the question of whether Meadows and Scavino escaped prosecution because OLC considered them immune under its precedents. OLC did not regard them as immune. That eliminates what had been, prior to the department’s brief, one potential rationale for the prosecutorial decision. That leaves at least two possible legal reasons the department would prosecute Navarro but not Meadows and Scavino:
1. Navarro’s claim to immunity—like Bannon’s but unlike Meadows’s and Scavino’s—is completely implausible such that Navarro could not have reasonably relied on the past OLC immunity opinions when deciding not to testify (the “plausibility distinction”)
or, more likely,
2. Navarro—unlike Meadows and Scavino—did not receive a direction from the former president not to testify and thus had no basis on which to claim that he had been directed to assert immunity by a government official and reasonably followed that direction (the “directive distinction”).
Both of these rationales turn not on the constitutional inability of the department to prosecute Meadows and Scavino but on the prospects for success in such a prosecution. If, by contrast, OLC had opined that Meadows and/or Scavino were immune, then, according to past OLC opinions, the department could not bring a contempt charge without violating its constitutional responsibilities. But because the department, presumably OLC, concluded that Meadows, and by implication Scavino, were not immune, there is no constitutional impediment to prosecution. Instead, the criminal side of the department had to consider whether a prosecution would be advisable and successful. In other words, the department had to consider whether the witnesses had any viable defenses.
In making this decision, the Justice Department has the benefit of its experience pursuing Bannon’s prosecution for contempt of Congress and addressing the various defenses he has raised. Bannon, like Navarro, refused to engage with the committee or cooperate in any manner, claiming that he was protected by executive privilege. As Lawfare senior editor Roger Parloff has exhaustively cataloged and tracked, Bannon’s defenses to his contempt prosecution have all rested to some extent on the argument that it would violate constitutional due process for him to be prosecuted by the Justice Department when he was only following the past opinions of the Justice Department, namely the opinions on immunity and executive privilege. The judge in Bannon’s case roundly rejected his arguments, and found that the opinions Bannon cited did not even plausibly apply to him, a private citizen at the time of the relevant events. Nor did any of those opinions purport to authorize complete noncompliance on the basis of executive privilege. Only the immunity that attaches to senior White House advisers would authorize that, and Bannon had been a private citizen during the period about which the subpoena sought information. (Bannon left the White House in August 2017, and the committee’s subpoena sought information only about events that began in April 2020.) Obviously, these arguments would be much different if brought by Meadows, Navarro, or Scavino in defense of a contempt prosecution, and those differences appear to have led the department to reach the result it did.
The Plausibility Distinction
With respect to the first potential reason—call it the implausibility rationale—it is difficult to see an argument that Navarro’s claim to immunity was materially less plausible than Meadows’s or, especially, Scavino’s. Meadows, Scavino, and Navarro—unlike Bannon—held positions in the Trump White House on and in the run-up to Jan. 6. Moreover, all held the formal title of assistant to the president, which is the highest level of commissioned officer within the White House and the officials who receive the highest pay under the applicable statute. Past OLC opinions that have concluded that senior presidential advisers were immune from compelled congressional testimony have emphasized that title, in part, to demonstrate that the official was in fact senior enough to constitute an “alter ego” of the president and thus be entitled to absolute immunity. A position as assistant to the president is not itself sufficient to render an individual immune, however. OLC opinions have limited immunity to the senior-most advisers who “customarily meet with the president on a regular and frequent basis” and who “assist him on a daily basis in the formulation of executive policy and [the] discharge of his constitutional responsibilities.” During the Trump administration, and particularly during the first Trump impeachment, OLC extended the immunity doctrine to cover a significantly wider group of individuals, including a deputy national security adviser who did not report directly to the president. That expansion arguably began with the Obama administration’s claim of immunity for David Simas, an important but relatively unknown political adviser. OLC has not withdrawn any of the Trump-era immunity opinions to our knowledge. Nor has it withdrawn the lengthy OLC opinion on congressional oversight of the White House, an opinion that seems to foreclose almost any testimony by a White House official. Accordingly, it does not seem likely that the Justice Department found that Meadows and, particularly, Scavino—a deputy chief of staff—could have reasonably concluded they were immune based on their positions, but that Navarro could not have.
There is a possibility that the Justice Department concluded Navarro’s claim to immunity was implausible because of the second prong of OLC’s immunity doctrine—the requirement that the testimony relate to the adviser’s official duties. Navarro’s official role in the White House was more defined and narrow than either Scavino’s or Meadows’s. Navarro served as a senior trade adviser to Trump and director of the now-defunct Office of Trade and Manufacturing Policy. His role as an adviser was specific to the area of trade and commerce and, at some point, the response to the coronavirus pandemic. The committee’s subpoena to Navarro asked for information about his effort to delay or overturn the results of the 2020 election and his interactions with private individuals—such as Bannon—and legislators—such as Ted Cruz. The letter accompanying the subpoena suggested the committee also wanted information about a so-called election report that Navarro released on his personal website, which “repeat[ed] many claims of purported fraud in the election that have been discredited in public reporting, by state officials, and courts.” The House’s contempt report on Navarro contends that the committee’s subpoena did not seek any information about Navarro’s performance of his official duties as a trade adviser but was “concerned exclusively with obtaining information about events in which Mr. Navarro participated or witnessed in his private, unofficial capacity.”
Meadows, by contrast, was the president’s chief of staff, the head of the Executive Office of the President, and the most senior presidential aide. He advised Trump on the entire scope of the president’s responsibilities and was likely involved in almost every decision Trump made in office. Scavino’s role—deputy chief of staff for communications—was neither as sweeping nor as senior as Meadows’s. But, in that role, he would likely have a role in advising the president about a wider range of matters than Navarro. Working in communications, he would need to have information about everything happening in the White House in order to tailor messages to the public. Unofficially, Scavino was also long known to be one of Trump’s most trusted advisers and potentially advised the president on matters even beyond his official title.
Unlike the subpoena to Navarro, the committee’s subpoenas to Meadows and Scavino explicitly seek information about their knowledge of Trump’s activities and communications in the lead-up to and on Jan. 6. In a letter accompanying the subpoena to Scavino, select committee chair Rep. Bennie Thompson writes, “[I]t … appears that you were with or in the vicinity of former President Trump on January 6 and are a witness regarding his activities that day. You may also have materials relevant to his videotaping and tweeting messages on January 6.” The letter also references reporting indicating that Scavino was with Trump on Jan. 5, 2021, when he and others were “considering how to convince Members of Congress not to certify the election for Joe Biden.” The select committee requested even more information from Meadows. It points to several instances of Meadows’s communication with Trump, including on Jan. 6, as well as Meadows’s engagement in planning of efforts to contest the presidential election. A letter accompanying the subpoena also notes that Meadows communicated with “the highest officials at the Department of Justice requesting investigations into election fraud matters in several states” and contacted state officials “to encourage investigation of allegations of election fraud.”
Accordingly, it is possible—though unlikely—that the Justice Department concluded that Navarro’s claim to immunity was completely implausible based on the fact that the subpoena sent to him did not relate to his narrower White House duties. But also that Meadows’s and Scavino’s claims were plausible and could support a due process defense based on existing OLC opinions because of the type of information sought from them and their broader official duties. The difference between Navarro’s and Meadows’s/Scavino’s claims, however, depends on extremely nuanced readings of somewhat ambiguous past OLC opinions as well as a particular interpretation of the committee’s somewhat vague subpoenas. Given that ambiguity, it would be quite surprising if the department felt there was a sufficiently material distinction between Meadows’s and Scavino’s belief that the subpoenas implicated their official duties and Navarro’s belief that the subpoena for his testimony related in some way to his official duties. Moreover, recent OLC opinions have taken a broad view of “official duties,” concluding that actions taken that were determined to be illegal were part of Trump adviser Kellyanne Conway’s official duties. As one of us has argued previously on Lawfare, the committee could have limited the scope of its subpoenas in a manner that eliminated this ambiguity, asking only about actions unrelated to their official duties—a step the committee later took in the civil litigation with Meadows. But the subpoenas to Navarro, Scavino, and Meadows had no such limitation.
The Directive Distinction
We now know that, in the Justice Department’s view, Navarro, Meadows, and Scavino are not immune under OLC’s doctrine. And it also seems clear that there is insufficient distinction among the three to claim that Navarro previously had no reasonable belief he was covered by OLC’s doctrine, but that Meadows and Scavino did. Why prosecute only Navarro then? The only remaining possibility seems to be hinted at by the conclusion of the department’s brief in the Meadows case. Justin Clark, the attorney for former president Trump, sent a letter to the counsel for both Meadows and Scavino instructing them to assert “any immunities you may have with respect to compelled testimony.” Neither the committee nor Navarro himself have ever reported receiving such an instruction. It seems possible, in the department’s view, that instruction combined with the previous ambiguity about the advisers’ immunity gives Meadows and Scavino a defense to contempt that Navarro lacks. They can argue that the government, in the form of former president Trump, authorized their actions. Navarro has no such defense.
Why would such a minor detail as whether or not a potential defendant received a letter from Trump’s counsel matter in the determination whether to pursue a contempt prosecution? Consider again Bannon’s defenses to his criminal prosecution. He contends that past positions in OLC opinions represent the government granting him the actual, implied, and apparent authority to refuse to comply with the subpoena and to stop the government from prosecuting him for conduct that it had authorized. Bannon has argued—unsuccessfully so far—that he should be able to present evidence that prosecuting him for reasonably relying on governmental positions regarding executive privilege violates due process. The judge rejected the proffered defenses and prohibited Bannon from submitting them to the jury because he found any purported reliance on the OLC opinions unreasonable given that the governmental positions taken in those opinions are inapplicable to Bannon. But the same cannot be said of Navarro, Scavino, and Meadows. Past OLC opinions established that immediate presidential advisers, including former advisers, are absolutely immune from compelled testimony concerning their official duties while in office. Bannon, though a former adviser, was not subpoenaed to testify about his time in that role. Thus, even though he too received an instruction to assert any immunities he had, he did not have any viable claims to assert them. Navarro, Scavino, and Meadows were senior presidential advisers. As noted, each could likely make an argument that the subpoenas related to their official duties, at least in part. But only Meadows and Scavino could reasonably believe that they had been authorized to assert that immunity by someone with authority to give such a direction: former President Trump.
That is not to say that Meadows and Scavino can assert they acted in good faith and Navarro cannot. In the Bannon prosecution, the Justice Department has successfully argued that the defendant’s good-faith belief that he does not have to comply with a subpoena does not matter in the context of a contempt prosecution. The only statutory requirement is that the defendant acted “willfully” in defying the subpoena; that is, he purposefully chose not to show up at the required deposition. As the judge in Bannon’s case recently articulated, the defendant could argue that his failure to show up was not willful because he did not believe the date on which he was supposed to show up applied to him. But he cannot argue that his failure was not willful because of a good-faith belief that he was immune.
Under various formulations of the public authority defense—including the specific claim of entrapment by estoppel on which Bannon has relied—a defendant can argue, however, that due process prevents a guilty verdict because the government authorized the very conduct in which the defendant engaged. Basic notions of fairness prohibit the government from prosecuting an individual for engaging in an act the government itself authorized. That is the one area where Meadows and Scavino conceivably differ from Navarro. Both had been “authorized” by a former president to assert immunity, the act for which they face prosecution. All three had been directed to testify by the current president, of course. But no law, OLC opinion, or judicial precedent established that a former president lacked the authority to direct a former senior adviser not to testify. Accordingly, until the department filed its brief establishing that Meadows and Scavino were not immune, they could argue that they reasonably believed the government—that is, the OLC opinions plus the former president’s direction—had authorized their actions.
The department’s brief casts considerable doubt on the proposition that a former president has any authority to make such a direction, particularly when the sitting president has declined to assert immunity. But the brief stops short of taking the firm position that a former president lacks such authority. Instead, the department tells the court it need not decide the issue since the immunity is qualified and overcome by the committee’s need, regardless of who has the authority to assert it. Moreover, the Supreme Court recently went out of its way to leave open the question of whether a former president has the authority to assert executive privilege, vacating a thorough opinion by the U.S. Court of Appeals for the D.C. Circuit rejecting a former president’s authority and instead ruling against former President Trump on alternative grounds. As a result, a former president’s authority to direct his former advisers to invoke immunity remains an open question. In light of that ambiguity, it appears the Justice Department may have concluded that Meadows and Scavino could rely on that instruction as a directive from a government official not to appear based on their potential immunity. Because Navarro received no such direction, however, he cannot argue that a governmental official sanctioned his noncompliance. Ironically, it may be that the only reason Navarro never received such a direction is that he never asked for one—or, more precisely, he, unlike Meadows and Scavino, did not, in his interaction with the committee, hire a lawyer who knew to ask for one.
If either of these rationales explains why the Justice Department did not prosecute Meadows and Scavino—and we are hard pressed to think of other potential legal rationales—then it has enormous implications for the Jan. 6 committee going forward. The Justice Department’s brief in the Meadows case establishes firmly that neither Meadows nor Scavino is immune from testifying before the committee. And even though the brief reserves the question of a former president’s authority to direct an adviser not to testify, it removes any doubt that—in the government’s view—former President Trump lacks authority to issue any directive to Meadows and Scavino. In the government’s view, because Meadows and Scavino are not immune, no president—former or sitting—has authority to direct them not to testify. They therefore cannot reasonably rely on any such direction from Trump or any prior OLC positions given the department’s brief.
Accordingly, if the committee were to again subpoena Meadows or Scavino—or any other former senior Trump adviser—and they again refused to testify and again were held in contempt, the Justice Department would likely reach a different decision about proceeding with prosecution next time. They would no longer have any defense. And they would thus be in the same position as Navarro and Bannon.
Pragmatic Prosecutorial Considerations and the Department’s Duty to Prosecute Contempt of Congress Referrals
The legal rationale proffered above is the best we can construct for the department’s decision. But we acknowledge both that it may be wildly off base and that other, more pragmatic considerations may have either driven or contributed to the department’s decision to prosecute Navarro but not Meadows and Scavino. Beyond those potential pragmatic reasons lies a more fundamental question, however: Are those types of considerations appropriate when considering whether to prosecute an individual who has been referred to the department by the House of Representatives for contempt of Congress?
Based on the executive branch’s understanding of executive authority, informed largely by the unitary executive theory, OLC concluded in 1984 that the Justice Department retains prosecutorial discretion as to whether or not to take a contempt referral before a grand jury. As noted, the Justice Department has exercised that discretion not to pursue contempt of Congress charges when there has been an assertion of executive privilege or testimonial immunity. OLC reached a similar conclusion during the Obama administration with respect to a witness’s invocation of her Fifth Amendment right against self-incrimination, concluding the U.S. attorney had discretion not to bring the contempt referral of a former IRS official, Lois Lerner, before a grand jury.
But those historical precedents have each involved a purported constitutional defense to the subpoena—executive privilege, testimonial immunity, and the Fifth Amendment. The Justice Department has never, to our knowledge, simply told Congress that it does not want to pursue a contempt of Congress charge because of pragmatic concerns, though it has never disclaimed such discretion either. The 1984 opinion does express a robust view of executive power and prosecutorial discretion that grants the executive branch ultimate discretion over any prosecution, regardless of what language a statute uses. But the Biden administration has decried some of the robust claims of executive power made under Trump.
Thus, one of the most interesting questions to consider is whether the Justice Department concluded that it could not prosecute Meadows and Scavino because they had a viable legal defense or whether it decided against prosecution solely on the basis of pragmatic considerations. The former plausibly aligns with past decisions not to prosecute contempt referrals, though it does extend them beyond solely constitutional prohibitions on prosecution. If the department decided not to prosecute solely on the basis of pragmatic considerations, however—perhaps concluding that the prosecution would be too unwieldy given what has occurred with Bannon to date or, more problematically, that it might undermine future claims of immunity by Biden officials—that would be an significant expansion of the department’s prosecutorial discretion. In light of the department’s brief and conclusion that Meadows is not immune, the decision not to prosecute him and Scavino already establishes a new historical precedent about the department’s duty to prosecute under the contempt of Congress statutes. If the decision rests solely on pragmatic, as opposed to legal, considerations, this new precedent represents an even more substantial expansion of the department’s role in enforcing contempt.
Cooperation With the Committee
One clear difference between Meadows and Scavino, on the one hand, and Navarro as well as Bannon, on the other, lies in their level of engagement with the committee. In the immediate aftermath of the Justice Department’s decision, some observers speculated that the difference in cooperation among the three led to the differential outcomes. Meadows and Scavino both engaged in negotiations with the committee’s lawyers for several weeks before they both ultimately stopped cooperating. In his negotiation period, Meadows turned over thousands of documents to the committee, including text messages and emails, and at one point reached a deal to sit for a deposition. There is less information about the exact communications between Scavino and the committee, but—after initially evading service of the committee’s subpoena—Scavino and his attorney engaged in discussions with the committee rather than spurn the committee entirely.
By comparison, Navarro publicly defied the committee’s request from the outset, citing executive privilege. Even after the committee said their questions would not broach potential privileges related to Navarro’s work in the White House, he refused to appear before the panel or even negotiate with them. Without providing any supporting evidence or explanation, Navarro told the committee that “President Trump has invoked [e]xecutive [p]rivilege in this matter; and it is neither my privilege to waive or Joseph Biden’s privilege to waive” and directed the committee to negotiate with Trump. Part of that response likely resulted from Navarro’s failure to hire an attorney to represent him in the matter. By contrast, Scavino and Meadows both had lawyers steeped in matters of congressional oversight and executive privilege who engaged with the committee’s staff and lawyers on their behalf. In that respect, Navarro’s case mirrors that of Bannon, who—though represented by counsel—fought the committee’s subpoena from the start, similarly claiming that executive privilege absolutely precluded him from turning over documents. Through his post-indictment attorneys, Bannon raised a number of additional issues in defending against his criminal contempt prosecution. But he, like Navarro, never raised most of them with the committee directly before rebuffing the committee’s subpoena.
One pragmatic consideration that went into that decision might be the perceived severity of the contempt and the posture the individual referred to the Justice Department had taken with respect to the committee’s authority. Meadows’s and Scavino’s engagement and incomplete compliance with the committee, however limited, could be a consideration in deciding not to prosecute them and to proceed only against Bannon and Navarro, the two witnesses who disclaimed any legal duty whatsoever to respond to the committee’s subpoena. In that respect, it likely helps that the lawyers for Meadows and Scavino understood from experience that disputes between Congress and the executive branch are typically back-and-forth negotiations involving compromise and accommodation. On their clients’ behalf, their attorneys adopted language and used arguments that resonated with the Justice Department, particularly OLC, while Bannon’s and Navarro’s outright defiance made them easier targets. Ultimately, each of the three was referred for prosecution by the House after refusing to appear for a deposition and refusing to provide all the documents required by the subpoena. It is thus difficult to understand why the prior, partial cooperation or negotiation by Meadows and Scavino would be sufficient to excuse their ultimate refusal to cooperate with the committee, particularly when the committee itself—as well as the full House of Representatives—had determined they were in contempt of their obligations to Congress.
Navarro, like Meadows, filed a civil suit seeking to quash the committee’s subpoena. In that suit, he disclosed a fact that may—or may not—represent a material difference between him and the other witnesses. Navarro’s filing disclosed that he received a separate subpoena from a grand jury investigating the events of Jan. 6 seeking the same information from him that the committee sought. This grand jury is investigating potential criminal charges against unknown defendants related to Jan. 6, and—as a result of the secrecy of grand jury investigations—very little is publicly known about what they are doing. The target of a grand jury investigation—that is, the individual who the grand jury is considering indicting on criminal charges—is typically not subpoenaed by the grand jury to testify. That person will have the opportunity to defend themselves at trial if indicted.
The grand jury that subpoenaed Navarro is thus likely seeking Navarro’s testimony as part of its consideration of criminal charges against someone else in the administration or in Trump’s circle, possibly high-level White House officials or outside individuals involved in the planning of Jan. 6, including Bannon. Accordingly, the Justice Department likely wants the information Navarro has for use in investigations of other people. Perhaps this is true of Meadows and Scavino as well. There is no way of knowing for sure. But assuming this is a difference between Navarro and Meadows/Scavino, it may have informed the department’s decision to treat them differently. The Justice Department obviously wanted information that Navarro had as part of one of its criminal investigations relating to Jan. 6, and a pending contempt charge could certainly give prosecutors more leverage in forcing him to cooperate in that investigation. Indeed, the department offered Navarro a plea deal in the contempt prosecution, part of which would have required him to comply fully with the committee’s subpoena (information that presumably would have then been shared with the Justice Department). It is not at all clear if the Justice Department is seeking the same type of cooperation from Meadows and Scavino, though it may be.
Self-Interest and Future Republican Oversight of the Biden Administration
More problematic is an additional consideration that is undoubtedly salient to some people in the Biden administration—the looming midterm election and the possibility of being inundated with indiscriminate congressional investigations if Republicans control the House in 2023. If OLC concluded that Meadows and Scavino had a plausible claim to immunity, but did not conclude they were in fact immune, could the Justice Department refuse to prosecute them because it wanted to preserve the opportunity to assert a broader immunity in the face of hostile investigations into the White House next year? Are those types of pragmatic, political considerations appropriate in considering whether to follow the contempt of Congress’s statutory mandate to bring a contempt referral before a grand jury?
The Justice Department often considers institutional interests. And conversations about those interests lead political appointees to support or take actions that they otherwise might not. Recent examples include the Obama administration’s support of Bush’s claim of immunity for his former counsel Harriet Miers and the Biden administration’s adoption of a number of positions supporting Trump-era litigation. It thus seems possible that the Justice Department found it to be in the institutional interests of the executive branch not to pursue prosecutions that would limit or undermine future claims of immunity or foreclose future assertions of authority by Biden when he leaves office. And that institutional interest would appear all the more salient given the high likelihood of clashes over privilege and immunity beginning in 2023.