WASHINGTON — The contempt of Congress referrals are starting to pile up at the Justice Department.
The House of Representatives on Wednesday added two names to the list of those it wants to see prosecuted for refusing to comply with subpoenas from the committee investigating the Jan. 6 riot at the Capitol: Peter Navarro and Daniel Scavino, who at the time of the riot were White House trade and manufacturing director and communications chief, respectively.
It has been nearly four months since lawmakers similarly voted to hold former White House chief of staff Mark Meadows in contempt, a referral on which the Justice Department has taken no action.
With midterms looming and the congressional committee trying to wrap up its work, a growing chorus of Democrats say Justice officials must charge Navarro, Scavino and Meadows, or risk sending the message that a congressional subpoena is meaningless. Committee member Rep. Adam Schiff, D-Calif., said a failure to indict “would eviscerate congressional oversight, particularly oversight of a corrupt executive.”
But legal analysts said the situation is somewhat more complicated. Although Justice might ultimately bring charges against the former White House aides, they say, the department must first grapple with several issues: the aides’ claim of executive privilege; the department’s own legal opinions that give such people broad protection from having to appear before Congress; and the precedents that indictments might set in bringing other criminal cases.
Federal prosecutors criminally charged former White House chief strategist Steven Bannon with contempt in November, less than a month after the House referred him. But Bannon had stopped working for President Donald Trump long before Jan. 6, 2021.
Analysts say those who were still employed by the White House leading up to the riot — such as Meadows, Navarro and Scavino — have at least somewhat plausible claims that they cannot be compelled to testify, which could complicate bringing charges against them. That is because Trump can claim their conversations should be shielded by executive privilege.
The Justice Department historically has defended the right of the executive branch to assert executive privilege, and past Justice Department legal opinions have asserted that Congress cannot make the president’s top advisers talk about their official duties. This case, though, is complicated because Biden — the current president — has declined to assert privilege, and the law is murkier on a former president’s power to do so.
Asked Wednesday about the delay in making a decision on Meadows, and criticism that lack of Justice Department action could render congressional subpoenas toothless, Attorney General Merrick Garland said only that prosecutors would “follow the facts and the law.”
“We don’t comment any further on investigations,” Garland said.
Lawyers for Scavino and Meadows, as well as Navarro himself, have said they cannot talk to the committee because of Trump’s privilege claims. Mary McCord, a former Justice Department official who once led the D.C. U.S. Attorney’s Office Criminal Division and assessed congressional referrals, said Meadows, Navarro and Scavino “at least had held these high level positions,” which made their cases “more complicated than Bannon.”
But from what is known publicly so far, McCord said, their claims of possible protection from testifying might not be so strong.
McCord noted that the Supreme Court had recently rejected Trump’s request to block the release of some of his White House records from the National Archives, and that Trump had not articulated what damage the executive branch would suffer if his former aides were made to testify.
If a court were weighing whether Trump’s former aides had valid privilege protection, it would have to compare that damage to the harm the committee might suffer in not getting to the bottom of what happened on Jan. 6.
“Right now, there’s nothing on that side of the ledger,” McCord said. “Everything is on the side of the House select committee.”
Some analysts said they expect the Justice Department will indict all those who refuse to comply with Jan. 6 committee subpoenas — even though it may take longer for some cases than it did for Bannon.
“I’m betting that Garland will eventually indict, seek a grand jury indictment, because to not do so is to invite contempt of Congress without consequence, and I can’t believe that Garland would tolerate that,” said New York University Law School professor Stephen Gillers.
But, Gillers added, Meadows, Navarro and Scavino could attempt “the established Trump defense of run out the clock,” raising various legal arguments to the Justice Department and in court that would delay any court proceedings until a Republican administration took over.
Of particular importance, analysts said, is the Justice Department’s own past legal guidance, repeated in multiple administrations, that Congress cannot compel aides to testify.
While the current president is the person who can assert executive privilege — and Biden has chosen not to do so for Trump’s aides — the law affords Trump some deference. For example, when the Supreme Court recently rejected Trump’s request to block the release of some of his records, Justice Brett Kavanaugh noted that Trump had the ability to invoke executive privilege, even as Kavanaugh ruled against the former president for other reasons.
“A former President must be able to successfully invoke the Presidential communications privilege for communications that occurred during his Presidency, even if the current President does not support the privilege claim,” Kavanaugh wrote. “Concluding otherwise would eviscerate the executive privilege for Presidential communications.”
His opinion illustrates the possibility that if Meadows, Navarro or Scavino are prosecuted, convicted and appeal the charges against them, the high court could ultimately rule in their favor, concluding in part that the former president’s claims of privilege prevent them from having to testify.
McCord said Trump might be able to claim that forcing his aides to testify would “chill the discussion of high level aides and the president in future presidencies.” But in this case, she added, “That’s just not a very persuasive argument.”
McCord noted that Meadows, Scavino and Navarro refused to testify before the committee and declined particular questions on the basis of executive privilege. Nor have they agreed to sit for questions and refuse to answer some on the grounds that doing so could incriminate them — which former Justice Department official Jeffrey Clark said he would do late last year.
Schiff pointed out that courts have not backed the Justice Department’s past legal opinions on executive privilege. Even if they had, he argued, executive privilege does not shield aides from having to discuss topics outside of their official duties.
McCord said top officials would be mindful of the precedent they might set in prosecuting former top level White House staffers for refusing congressional subpoenas — aware of the potential for investigations and summonses that hamper executive branch functioning in the future.
“There is an institutional interest in protecting privilege in the right cases,” McCord said.
David Laufman, a former Justice Department official now in private practice who represented two Capitol police officers in congressional testimony about the Jan. 6 attack, said if he were still at the department, he would probably ask the Office of Legal Counsel to provide an opinion on former presidents’ asserting executive privilege and the litigation risk that could come from prosecuting the former aides.
But he added that he saw no privileges on which the former aides could rely.
“It would seem quizzical for the Department of Justice, after carefully reviewing the facts, not to proceed expeditiously to bring criminal charges for contempt of Congress,” Laufman said. “The Department of Justice needs to bring the same sort of urgency to making charging decisions in this case, as it would in other matters of compelling national interest — particularly when there’s a threat to the homeland, which is precisely what is at stake here.”
While Meadows, Scavino and Navarro all held key White House positions during the events the committee is investigating, the Justice Department might have different considerations in each of their cases, analysts said. Meadows, for example, cooperated with the committee for a time — turning over thousands of documents, including personal emails and text messages, that his attorneys believed were not privileged — before ultimately refusing to come in and testify. Though Navarro was a White House adviser, his work was supposed to be centered on trade and manufacturing.
“A decision on each one will be made on the merits of each individual case,” McCord said. “What they do in Meadows, they have to be considering how that will impact the future. But it doesn’t mean if you do one, you do them all. Or if you don’t do one, you don’t any of them.”
In 2008, the Justice Department rebuffed a contempt referral against President George W. Bush’s chief of staff, Joshua Bolten, and former White House counsel Harriet Miers, who had resisted subpoenas over the controversial forced resignations of U.S. attorneys. In 2012, under President Barack Obama, the department declined to pursue a contempt prosecution against Attorney General Eric Holder, who refused to turn over some documents about the so-called Fast and Furious scandal, a gunrunning sting gone wrong.
Bannon’s case, meanwhile, is still making its way through the court system. On Wednesday, a federal judge dealt a blow to his defense, ruling Bannon could not argue he was merely acting on the advice of his lawyer when he bucked his congressional subpoena.
U.S. Rep. Bennie Thompson, D-Miss., Jan. 6 committee chairman, told reporters on Wednesday that referrals of Meadows, Scavino and Navarro were “very strong” contempt cases. But he demurred when asked about the importance of the decision on whether to prosecute.
“We’ve now done all we can do in terms of the contempt — it is now in the hands of the Department of Justice,” Thompson said. “We still have a body of information that we’ve gleaned from over 800 other witnesses.”