The breaking news from a House Select Committee court filing on April 22 is that in the days before the insurrection, the Secret Service warned former Trump administration Chief of Staff Mark Meadows of potential violence. The filing also discloses evidence that Meadows met with at least ten Republican House members in December 2022 to discuss ways to overturn the election.
The filing also has significant implications for upholding our constitutional system of checks and balances. And for Attorney General Merrick Garland’s decision on whether to indict Meadows.
Since at least 1927, the Supreme Court has upheld Congress’s “power. . . to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.”
Meadows has directly challenged that power. The new filing is a motion for summary judgment in the case Meadows brought on December 8 to enjoin enforcement of the committee’s subpoena.
Significantly, the motion drills a hole through his potential defense to any indictment for contempt of Congress and thereby increases questions about the Attorney General’s delay in charging Meadows after Congress held him in contempt on December 13 and referred him to the DOJ for charging.
Recall that after voluntarily providing thousands of text messages and other documents to the committee, Meadows adopted a defiant course on November 12 and refused to testify. The House contempt vote and referral was more than 130 days ago. The Justice Department took 22 days to indict Steve Bannon on similar charges.
Contrary to popular perception, Meadow’s strongest claim is not to executive privilege. In January, the Supreme Court rejected Trump’s assertion of executive privilege—and with it Meadow’s derivative claim—resulting in disclosure to the committee of January 6 White House documents that the former president sought to shield.
Meadows’ stronger defense, as University of Chicago law professor emeritus Albert Alschuler recently described it, rests on a series of opinions from the Justice Department’s Office of Legal Counsel (OLC). They assert the legal immunity of high-level Executive Branch officials from congressional testimony.
Immunity does not require the existence of executive privilege. It is a flat-out prohibition on Congress ordering a senior adviser to the president to testify.
Professor Alschuler argued that while those opinions are weak—they cite no judicial authority and have been rejected by two federal judges—courts might find it unfair for the Justice Department to prosecute Meadows if its own opinions were his basis to refuse to testify.
Alschuler suggested that the Department consider rescinding the flawed opinions and simultaneously announcing it would not prosecute Meadows under them for now. That would leave it to the committee to re-subpoena him, with the DOJ retaining the option to indict him if he continued his defiance.
While that remains a possible course for Attorney General Garland, the committee’s new filing makes crystal clear why the case for indicting Meadows was always strong and remains so. The OLC’s most recent memo on senior White House aides’ immunity relates to former White House Counsel Don McGahn and states: “Congress may not constitutionally compel the President’s senior advisers to testify about their official duties.”
The last four words are important because, as the select committee’s April 22 motion states, much of the testimony that the committee seeks is unrelated to his official duties: “Mr. Meadows acted in his non-governmental capacity with regard to numerous post-election campaign efforts, including by traveling to Georgia to observe an audit of absentee ballot signatures, and by lobbying state officials, legislators and others urging changes to state election results, by participating in an effort to create false electoral slates for certain states, and in other ways.”
One of the “other ways” was Meadows’ participation in former president Trump’s infamous January 2 call to Georgia Secretary of State Brad Raffensperger in which Trump asked Raffensperger to find “11,780” votes, one more than needed to overturn the election. As the committee’s filing bluntly states about such activity, “Mr. Meadows participated, as a functionary of the Trump campaign, in activities intended to result in actions by state officials and legislatures to change the certified results of the election.”
The Hatch Act, well known to all federal employees, makes it unlawful for them to participate in election-related activities. Even under the wrongly reasoned OLC opinions on senior presidential aides’ immunity, it is simply untenable, and always has been, for any such aide to claim that political activities are shielded from congressional investigation.
Garland may be waiting to see how the district court rules on Meadow’s suit to block the subpoena. But in addition to the Supreme Court’s rejection of executive privilege claims that Meadows repeats, two other courts have already ruled against the other claims he makes about the committee’s legitimacy.
The select committee’s mandate ends with this Congress and will not be renewed if Republicans take control of the House in 2023. Should that happen, Meadows will claim that enforcing the subpoena is moot.
Attorney General Garland cannot wait much longer to fulfill his vow to uphold the Constitution. Enforcing compliance with lawful congressional subpoenas is central to that sacred responsibility. The Justice Department must not allow Mark Meadows to run out the clock on the rule of law.