Former Trump Officials’ Criminal Credentials Pose Tricky Questions for DOJ

The tough decisions are piling up at the Department of Justice (DOJ), which is currently weighing three criminal congressional dismissals directed at former Trump White House officials.

The dismissals pose thorny legal issues for a department that has historically defended the testimonial immunity of senior administration officials from congressional subpoenas.

This week, the House voted to hold Peter Navarro and Dan Scavino in contempt for defying the committee’s Jan. 6 subpoenas as the panel grows increasingly frustrated in the nearly four months since that he approved a dismissal for former White House chief of staff Mark Prairies.

When the House voted to remove Steve Bannon to the DOJ last year for defying another select committee subpoena, federal prosecutors quickly brought charges of criminal contempt of Congress against the Trump confidant and former strategy strategist. the White House.

But the removals involving Meadows, Navarro and Scavino may involve tougher considerations for the Justice Department since their subpoenas cover their work as White House officials.

Neil Eggleston, a former White House attorney and congressional investigator for the House’s Iran-Contra inquiry, said the remaining cases are tougher than Bannon’s, who was well outside the White House during the period. in question.

“For people who were senior White House officials at the time, there’s another layer of complexity that doesn’t apply to a Bannon,” he said.

The DOJ has consistently advocated for the protection of such officials from congressional investigations, taking legal positions that the legislature has no way to compel presidential advisers to testify.

“For a few decades now, we’ve seen the DOJ articulate this kind of absolutist position that the president’s close advisers are absolutely immune to congressional subpoenas,” said David Janovsky, an analyst with the nonpartisan project on the government oversight.

“And it’s worth noting that the DOJ basically made this up out of thin air, and it’s certainly not something that Congress agrees with, and it’s not really something that any of the judges who’s had a chance to look at this argument didn’t agree with either. So they’re pretty much alone on this, but that’s the line they’ve toed in the past.

The growing pile of dismissals for criminal contempt of Trump White House officials is now forcing the department to balance its institutional interest in preserving executive branch prerogatives with the Biden administration’s support of the select committee’s investigation.

While Congress has the power to issue subpoenas and courts have recognized the legal weight of such requests, the legislature has limited options when it comes to ensuring they are enforced. .

When someone defies a congressional subpoena, Congress typically files a civil suit asking the courts to enforce it, or disregards the target of the subpoena, turning it into a criminal case that the Justice Department must continue.

For Bannon, who refused to provide documents or testimony, he faces two contempt charges, each of which carries the risk of a year in prison and up to $100,000 in fines.

Under federal law, the DOJ has a “duty” to bring contempt charges upon receipt of a criminal referral from Congress, but prosecutors have in the past refused to act on referrals from the legislature.

Amid their frustration with the DOJ’s lack of action, some House members Select committee members called the department, arguing that if the administration does not follow through on the referral, it will undermine the panel’s authority and its ability to hold the Jan. 6 course to account.

“The Department of Justice has a duty to act on this referral and others we have sent,” Rep. Adam Schiff (D-California) said last month when the select committee voted to send the referrals. Navarro and Scavino upstairs in the Chamber. .

“Without enforcement of congressional subpoenas, there is no scrutiny, and without scrutiny, no accountability — for the former president or any other president, past, present, or future. Without the application of its legal process, Congress ceases to be a co-equal branch of government, and the balance of power would be forever altered, to the lasting detriment of the American people.

Attorney General Merrick Garland declined to provide any guidance on how the department might proceed with Meadows’ removal.

“We will follow the facts and the law wherever they lead us. We no longer comment on investigations,” Garland said at a press conference this week.

The Jan. 6 committee sought out Scavino, Trump’s deputy chief of staff for communications, after spending a lot of time with the president on Jan. 6 and helping promote the rally.

Navarro, a former trade adviser to Trump, has since revealed in his book that he was involved in plans to delay the certification of the presidential election. He also wrote a three-part series on his website promoting Trump’s false allegations of widespread voter fraud.

Neither man showed up for the scheduled deposition or provided any documents.

Eggelston said the DOJ will carefully read the advice of its Office of Legal Counsel (OLC), which has drafted memos to department attorneys saying current White House officials don’t have to sit down for interviews with congressional committees.

“OLC opinions are not binding on the courts, but they are binding on the Department of Justice,” he said.

But Eggelston said Navarro may present an easier case for the Justice Department given that his involvement in Trump’s efforts to stay in power goes well beyond his executive branch duties.

“Navarro is not consulted on economic issues. He was consulted on the rally and the insurrection. And so I think there’s a pretty strong argument that none of those doctrines apply,” he said.

The Biden administration has largely supported the select committee’s investigation so far, waiving executive privilege over records and officials and siding with the panel in court in various legal challenges.

Janovsky said the urgency behind the select committee’s investigation should compel the DOJ to act on the criminal referrals, even if it’s not ready to fully abandon its past positions on executive authority in the face of government oversight. Congress.

“Fundamentally, we have to remember that Congress is investigating an insurrection and an attempt to prevent the transfer of power,” Janovsky said. “Any action that makes it harder for Congress to conduct this investigation is damaging. It’s hard to imagine a more serious subject of congressional investigation and they need every tool available, including punishing people who don’t want to cooperate.

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