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Federal Judge Carl J. Nichols asked the Justice Department whether Mark Meadows has immunity from testimony. The inquiry puts Merrick Garland’s department on the horns of a painful dilemma on a matter of high significance, namely, what the former White House Chief of Staff would reveal about President Trump’s statements at the peak of the January 6th insurrection.
The stakes are high. Meadows had turned over more than 150 texts of January 6th, an extraordinarily important minute-by-minute record of Trump’s office that day.
Nichols presides over a civil suit Meadows filed again the January 6th Committee for subpoenaing him. The civil suit is separate from, but related to, a criminal referral by the House of criminal contempt by Meadows. The Justice Department declined to proceed with charging Meadows. In the suit, Meadows has made a claim of immunity as White House chief of staff. Judge Nichols acts quite appropriately in asking DOJ’s position, because the asserted immunity is for the interests of the Executive Branch (represented by DOJ), not Meadows personally.
This issue has a long history, well over forty years of challenge between Congress and the Executive Branch. As House general counsel, I was familiar with the history, particularly since my predecessors, Stan Brand and Steven Ross, had crossed swords with DOJ in one of the most dramatic controversies on the subject.
DOJ has taken the position, in major legal pronouncements, that a high White House official would have no obligation to obey a Congressional subpoena. DOJ considers it inconsistent with the separation of powers for Congress to have the power to have such an official criminally charged for their recalcitrance.
Congress, on the other hand, rejects this DOJ position, and its certification of Meadows’ contempt is in a sense simply the continuation of the longstanding Congressional position that its rights to Executive oversight go back not merely to the Constitution but beyond that to the House of Commons battling the Tudor and Stuart monarchs in the 1600s and 1700s.
This is the dilemma that Judge Nichols forces DOJ to deal with. On the one hand, Garland does not want to force Meadows to testify. That would make him go against the old DOJ precedents (which he may badly need in 2023-2024 if the House goes Republican). Moreover, the priceless prize of getting Meadows’ testimony might possibly go first to the January 6th Committee rather than DOJ.
On the other hand, it would look ugly for DOJ to formally smack the House Committee. It is awkward for Garland to “get religion” on Meadows’ privilege this late. The House Committee got, and used, the revealing Meadows’ texts. DOJ is proceeding criminally, for contempt of Congress, against Peter Navarro, an important White House staffer (and Steve Bannon, who played some formal White House roles apart from his better known escapades).
Right now, the focus of public attentions has of course gone to the Supreme Court opinions. But if the January 6th committee holds more hearings in July, the Meadows issue may surface.
