He should

Yes, Merrick Garland can prosecute Mark Meadows (and Peter Navarro, and Dan Scavino)

He should, too.

By Ian Millhiser

The US House committee investigating the January 6, 2021, attack on the Capitol and the Trump White House’s role in it is charging ahead. But — thanks in part to the limited power of congressional inquiries — the success of their next steps depends on the Justice Department.

And at least right now, the committee appears to be losing faith in that department, and specifically in Attorney General Merrick Garland, who has thus far been reluctant to prosecute high-ranking Trump administration officials who’ve stonewalled the committee. Several members of the committee criticized Garland for failing to prosecute at least one former top Trump aide whom Congress voted to hold in contempt. In the words of Rep. Elaine Luria (D-VA), “Attorney General Garland, do your job so we can do ours.”

The committee also voted unanimously on Monday to hold two former Trump White House aides in contempt of Congress. The former aides, trade adviser Peter Navarro and social media director Dan Scavino, both refused to comply with a subpoena seeking documents and testimony.

In the likely event that the full House agrees that the two men should be held in contempt, both could be fined and face up to a year of incarceration — though the decision whether to prosecute the two former White House aides will be made by the Justice Department and not by Congress.

Based on what we already know about how the Justice Department has handled other referrals, it’s unclear whether it will decide to act.

Last November, the Justice Department indicted Stephen Bannon, another former top Trump aide, because Bannon also refused to comply with a subpoena from the January 6 committee. About a month later, Congress voted to hold former Trump White House chief of staff Mark Meadows in contempt, but Meadows has not yet been indicted.

If DOJ does eventually prosecute Meadows, Navarro, and Scavino, their cases could potentially raise distinct legal issues because all three were still White House employees and members of Trump’s inner circle during the January 6 attack, while Bannon was a private citizen.

Indeed, Navarro is openly hoping that his status as a former consigliere to a sitting president will rescue him from contempt charges. The subpoena, he misleadingly claimed, is “predicated on the ridiculous legal premise that Joe Biden can waive Donald Trump’s Executive Privilege,” before predicting that “the Supreme Court will say otherwise when the time comes.”

There are several reasons to doubt that Navarro’s prediction will prove accurate. While the GOP-controlled Supreme Court was quite protective of Trump while the former president was in office, effectively thwarting a House-led investigation that sought his financial records until after Trump left office, the Court broke with Trump in a January 6-related case after he left office.

That case, Trump v. Thompson, permitted the January 6 committee to obtain hundreds of pages of Trump White House records that were held by the National Archives.

Navarro is also wrong that President Biden’s views are irrelevant to whether Navarro can hide behind executive privilege. Though the Supreme Court held in Nixon v. Administrator of General Services (GSA) (1977) that this privilege “survives the individual President’s tenure,” the GSA case also held that a former president’s power to keep their staff’s deliberations secret is much less potent than a sitting president’s power to do so. And it is especially weak when the sitting president believes that a former administration’s deliberations should not remain secret.

So, while Biden doesn’t have the authority to completely override Trump’s assertions of executive privilege, courts typically afford considerable deference to a sitting president’s determination that a past president should not be allowed to claim the privilege.

On top of these two problems for Navarro, it’s far from clear that Navarro’s actions are even covered by the executive privilege. Though communications between a president and their top aides are often privileged, according to a federal appeals court, that privilege only applies to communications concerning “official government matters.” Trump’s efforts to overturn the 2020 election fall outside of a president’s official duties.

So it is likely, if not entirely certain, that if the Justice Department decided to prosecute Meadows, Navarro, and Scavino, the courts would not bail out these three former officials.

The biggest obstacle facing prosecutors would most likely be the potential for jury nullification — a jury that includes staunch Trump supporters may refuse to convict, potentially hanging the jury, no matter how strong the evidence against former Trump aides. Perhaps that explains Garland’s caution, because case law strongly supports allowing such a prosecution to move forward.

The Supreme Court does have a Republican majority that could still bend the law to thwart an investigation into the former GOP president. But the Thompson case suggests that even this Supreme Court may be reluctant to do so.

Executive privilege, briefly explained

Executive privilege permits presidents — both sitting and former — to keep certain communications among their subordinates confidential. As the Court explained in United States v. Nixon (1974), the privilege exists to ensure that presidents receive candid advice. “Those who expect public dissemination of their remarks,” the 1974 Nixon case explained, “may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”

But Nixon also held that the privilege is neither “absolute” nor “unqualified.” In that case, the Supreme Court ordered then-sitting President Richard Nixon to turn over tape recordings that incriminated him and eventually led to his resignation. “Absent a claim of need to protect military, diplomatic, or sensitive national security secrets,” the Nixon case held, the justice system’s need to conduct a full investigation into the Watergate scandal, and to prosecute any crimes committed during the course of that scandal, overcame the presidency’s interest in keeping Nixon’s communications secret.

A few years later, in the GSA case, the Court added that executive privilege “is not for the benefit of the President as an individual, but for the benefit of the Republic.” Thus, if a president seeks to keep secret their own efforts to harm the republic, the privilege should not apply.

GSA also explains how courts should treat executive privilege claims by a former president. The current president, the Court reasoned in GSA, is the best caretaker of the presidency’s institutional interests. And “it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly.”

Earlier this year, President Biden determined that “an assertion of executive privilege is not in the national interest, and therefore is not justified, with respect to particular subjects within the purview of the Select Committee” investigating the January 6 attack. So, even if Trump attempts to rescue Navarro and Scavino by asserting executive privilege, his ability to do so is weakened significantly because he is at odds with the sitting president.

The judiciary’s leading authority on Trump’s ability to resist subpoenas may be Judge Ketanji Brown Jackson

As noted above, the Supreme Court effectively prevented House investigators — and the voters more broadly — from learning about Trump’s personal finances in Trump v. Mazars (2020). After Trump left office, however, the Court appeared to reverse course and allow House investigations into Trump to proceed in the Thompson case.

By sheer coincidence — appellate judges are typically randomly assigned to cases — one of the lower court judges who ruled against Trump in Thompson was Supreme Court nominee Judge Ketanji Brown Jackson. Jackson also ruled in an earlier case, Committee on the Judiciary v. McGahn, that top presidential aides are not immune from congressional subpoenas. Both decisions offer some insight into how the courts might approach a prosecution of Navarro and Scavino.

Judge Jackson’s decision in McGahn, which was handed down while she was still a federal trial judge, was fairly measured. Although she rejected the Trump administration's claim that “a President’s senior-level aides have absolute testimonial immunity” from a congressional subpoena, she also determined that executive privilege might allow them to refuse to answer certain questions.

Under Jackson’s approach, which is the same approach taken by the January 6 committee, a top presidential aide subpoenaed by Congress must physically show up to testify. But “the specific information that high-level presidential aides may be asked to provide in the context of such questioning can be withheld from the committee on the basis of a valid privilege.” (The correctness of Jackson’s McGahn opinion was never fully resolved on appeal, in part because of competing appeals court decisions, and in part because McGahn agreed to voluntarily testify after Trump left office.)

So, if Navarro and Scavino had complied with the subpoena, it is possible that some of the information sought by the committee might be protected by executive privilege. But, at least under Jackson’s approach, they cannot simply refuse to show up — and can be held in contempt of Congress for their refusal.

In Thompson, meanwhile, the Supreme Court handed down a brief, one-paragraph order that offers only limited insight into why the Court ruled against Trump. But the justices’ brief order in Thompson seemed to credit the lower appeals court’s decision — the decision that was joined by Judge Jackson — which determined that “President Trump’s claims would have failed even if he were the incumbent.”

Among other things, the appeals court ruled that Congress has a “uniquely weighty interest in investigating the causes and circumstances of the January 6th attack so that it can adopt measures to better protect the Capitol Complex, prevent similar harm in the future, and ensure the peaceful transfer of power.” The House, that court explained, “is investigating the single most deadly attack on the Capitol by domestic forces in the history of the United States.”

Thus, the country’s overriding interest in fully understanding how this attack happened is strong enough to overcome even a sitting president’s claim of executive privilege.

So, while it remains to be seen whether Navarro and Scavino will be indicted, and while it is always possible that the Supreme Court’s Republican majority will intervene on their behalf, such an outcome seems unlikely. The Court broke with Trump on the January 6 attack in Thompson, and the same factors that guided the Court’s decision in Thompson should also control any claim by Navarro and Scavino that they cannot be prosecuted due to executive privilege.