Tough decisions are piling up at the Department of Justice (DOJ), which is now weighing three criminal referrals from Congress directed at former Trump White House officials.
The referrals pose thorny legal issues for a department that has historically defended senior administration officials’ testimonial immunity in the face of congressional subpoenas.
This week, the House voted to hold Peter Navarro and Dan Scavino in contempt for defying the Jan. 6 committee’s subpoenas as the panel grows increasingly frustrated over the nearly four months that have passed since it approved a referral for former White House chief of staff Mark Meadows.
When the House voted to refer Stephen Bannon to the DOJ last year for defying another select committee subpoena, federal prosecutors quickly brought criminal contempt of Congress charges against the Trump confidant and former White House strategist.
But the referrals 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 counsel and congressional investigator for the House’s Iran-Contra probe, said the remaining cases are more difficult than that of Bannon, who was well out of the White House during the time 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 historically argued in favor of shielding such officials from congressional inquiry, adopting legal positions that the legislative branch has no avenue to compel testimony from presidential advisers.
“For a few decades now, we’ve seen DOJ articulating this kind of absolutist stance that close advisors to the president are absolutely immune from congressional subpoena,” said David Janovsky, an analyst with the nonpartisan Project on Government Oversight.
“And it’s worth noting that DOJ has basically invented this out of whole cloth, and it’s certainly not something that Congress agrees with, and it’s not really something that any of the judges who have had an occasion to look at this argument have agreed with either. So they’re pretty much on their own on it, but that’s the line they’ve taken in the past,” he added.
The growing pile of criminal contempt referrals for 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 the courts have recognized the legal weight of those demands, the legislative branch has limited options when it comes to making sure they are enforced.
When someone defies a congressional subpoena, Congress will usually either file a civil suit asking the courts to enforce it or hold the subpoena target in contempt, turning it into a criminal matter that the Justice Department must pursue.
For Bannon, who refused to provide either documents or testimony, he’s facing two contempt charges, each carrying the risk of a year in prison and up to $100,000 in fines.
Under the federal statutes, the DOJ has a “duty” to bring contempt charges upon receiving a criminal referral from Congress, but prosecutors have in the past declined to follow through on the legislative branch’s referrals.
Amid their frustration over lack of action from the DOJ, some House select committee members have called out the department, arguing that if the administration doesn’t follow through on the referral, it will undermine the panel’s authority and ability to seek accountability over Jan. 6.
“The Department of Justice has a duty to act on this referral and others that we have sent,” Rep. Adam Schiff (D-Calif.) said last month when the select committee voted to send the Navarro and Scavino referrals to the House floor.
“Without enforcement of congressional subpoenas, there is no oversight, and without oversight, no accountability — for the former president, or any other president, past, present, or future. Without enforcement of its lawful 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,” he added.
Attorney General Merrick Garland has refused to provide any hint of how the department might proceed with the Meadows referral.
“We will follow the facts and the law wherever they lead. We don’t comment any further on investigations,” Garland said this week at a press conference.
The Jan. 6 committee sought Scavino, Trump’s deputy chief of staff for communications, after he spent considerable time with the former president on Jan. 6 and helped promote the rally.
Navarro, a former trade adviser to Trump, has since disclosed in his book that he was involved in plans to delay certification of the presidential election. He also wrote a three-part series on his website promoting Trump’s false claims of widespread election fraud.
Neither man showed up for slated deposition or supplied any documents.
Eggleston said the DOJ will be closely reading the advice from its Office of Legal Counsel (OLC), which has penned memos to the department’s lawyers holding that current White House officials do not have to sit for interviews with congressional committees.
“OLC opinions don’t bind courts, but they do bind the Justice Department,” he said.
But Eggleston said Navarro could present an easier case for the Justice Department given that his involvement in Trump’s efforts to remain in office were well outside the scope of his executive branch duties.
“Navarro isn’t being consulted about economic matters. He’s been consulted about 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 been supportive of the select committee’s investigation thus far, waiving executive privilege over records and officials and siding with the panel in court in various legal challenges.
Janovsky said that the urgency behind the select committee’s investigation should compel the DOJ into following through on the criminal referrals, even if it’s not ready to completely abandon its past positions on executive authority in the face of congressional oversight.
“Fundamentally, we need to remember that Congress is investigating an insurrection and an attempt to prevent the transfer of power,” Janovsky said. “Any step that makes it harder for Congress to do 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.”