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Litman: Can Jan. 6 panel corral Mark Meadows? It’s tricky

Litman Can Jan 6 panel corral Mark Meadows Its tricky



Now that Stephen K. Bannon has surrendered, snarling and vengeful, to face charges of criminal contempt of Congress, the attention of the Jan. 6 House Select Committee turns to President Trump’s last chief of staff, Mark Meadows, who followed in Bannon’s footsteps last week in refusing even to show up for a scheduled deposition or turn over subpoenaed documents.

Judging from the current war of words, Meadows and the committee are at loggerheads and another criminal contempt referral is in the works.

Committee member Rep. Adam B. Schiff (D-Burbank) said on “Meet the Press” on Sunday that Meadows’ recalcitrance “pretty much forces our hand…. I’m confident we’ll move very quickly against Mr. Meadows.”

Meadow’s counsel, former Deputy Atty. Gen. George Terwilliger, wrote in the Washington Post last weekend that “the only path to resolution may run through the courts.”

On Tuesday, the committee chairman, Rep. Bennie Thompson (D-Miss.) announced he’d sent a letter to Meadows: “We need these questions answered.”

But Meadows’ case is very different from Bannon’s. Both he and the committee have a lot to lose from a criminal referral, which suggests that they may yet work out a resolution.

For the committee, a substantial downside to criminal contempt charges is that they’d lose access to Meadows and his information. His alleged crime is what would be decided in federal court, and until the case was resolved, which almost surely would be after the effective life of the Jan. 6 committee, no one in Congress would be grilling him.

That was a cost the committee was willing to pay with the garrulous, ever-combative Bannon. He has made plenty of public statements the committee can make use of — remember his Jan. 5 podcast classic, “All hell is going to break loose tomorrow”?

Not so Meadows, who has tried to stay out of the public eye since the rampage. As Trump’s primary minder at the end, he is perhaps the most knowledgeable source about the former president’s movements, statements, communications and emotions on Jan. 6. And news reports suggest Meadows himself may have been deeply involved in attempts to find Trump votes in Georgia and in planning the rally that sparked the Capitol conflagration. The House committee doesn’t want his evidence to be lost to a criminal process.

Moreover, the committee can’t predict what the outcome of a criminal referral would be. It doesn’t know the particulars that fed into the department’s decision to indict Bannon. Meadows’ communications with Trump, unlike Bannon’s, could be considered strong candidates for protection under executive privilege. If the committee refers Meadows to the Justice Department, it’s possible the Justice Department would evaluate Meadows’ criminal intent differently from Bannon’s.

The Bannon indictment was a triumph for Congress’ powers of investigation (and the rule of law) after the Trump years, in which congressional subpoenas were casually and successfully flouted. If a Meadows referral were to come out the other way, it could once again brand Congress a paper tiger.

If the committee has reasons to avoid a criminal referral, so does Meadows. His demeanor is light-years from the bring-it-on pugilism of Bannon. He has nothing to gain from outlaw status. Nor is he known to have the deep pockets needed to fund a federal court criminal defense. And, after his White House stint, he surely hoped for a future in important D.C. professional circles. A criminal conviction for contempt of Congress would cripple if not demolish those prospects.

It’s conceivable the committee is considering bringing a civil contempt case against Meadows. If it could be done quickly, and if it succeeded, that would be a powerful option: Meadows would go to jail and stay there he complied with the committee’s subpoena.

Unfortunately, until recently, Team Trump has been able to string along civil cases aimed at investigating the former president for a year or more, effectively taking the civil option off the table. It’s true that the federal courts have been moving at lightning speed (comparatively) to consider (and very likely reject) Trump’s own case to resist the committee’s document request. Still, Thompson and company can’t be sure of a speedy civil contempt action; the committee could find itself stuck in a familiar morass of delay and stonewalling.

It’s galling to contemplate that Meadows might evade the full measure of his legal responsibility to comply with a congressional demand that is of surpassing importance. But Meadows and the committee are locked in a game of chicken, in which each has significant risks of losing something very valuable — Meadows his liberty and livelihood, the committee critical testimony. Sometimes games of chicken end in spectacular crashes. Sometimes there’s an outright winner. More frequently, the combatants veer away from an all-or-nothing outcome. Look for something like that to happen here.

@HarryLitman





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