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Dear Reader,

As a toddler, I was a devout Sesame Street viewer. A fanatic and a connoisseur, really. One of my favorite recurring bits was called “One of These Things is Not Like the Other.” They’d show, say, a lemon, an apple, an elephant, and an orange, and the viewer would have to pick out the one thing that didn’t belong. Part of the allure was that, even to a kid just out of diapers, it was pretty easy to figure out. (Take that as a brag if you will; by the way, it’s the elephant.)

Alas, time goes by and life’s puzzles get more complicated. Take, for example, the Justice Department’s decisions on whether to file criminal contempt of Congress charges against four high-profile subjects who defied subpoenas from the January 6 Committee: Mark Meadows, Dan Scavino, Peter Navarro, and Steve Bannon (who is set to stand trial next week).

At first glance, there’s little to distinguish one from the next. All four defied their subpoenas, the Committee voted to hold them all in contempt, and the full House of Representatives did the same. Yet now two of the subpoena-defiers (Navarro and Bannon) face federal prosecution and potential imprisonment, while the other two (Meadows and Scavino) won’t be charged and will walk away consequence-free. “Two of these things are not like the others…”

You’d be well justified in asking: how could that be? The Committee issued a formal statement calling the Justice Department’s charging decisions “puzzling,” and Representative Adam Kinzinger said he was “frustrated” by DOJ’s contempt decisions. I share that initial sense of confusion, laced with a ribbon of exasperation – though the charges at issue are more complex than they may appear at first glance. 

So let’s try to make sense of the outcome here. I don’t necessarily agree with how DOJ seemingly drew the line between the criminal defendants and the uncharged, but we can reverse-engineer to see behind prosecutors’ reasoning.

Executive privilege. First, prosecutors seem to have taken into account the relative strength of the four subpoena recipients’ executive privilege claims. It’s tempting to look at the situation and conclude: they all defied the subpoenas, that’s contempt, game over. But there’s always a defense, and here the argument would be: I didn’t testify because I was rightly and lawfully preserving executive privilege

But not all executive privilege claims are created equal. If we look at our four subjects here, Meadows (who was not charged) plainly would have the strongest executive privilege claim, as former White House chief of staff to Donald Trump. The chief of staff is one of the president’s closest advisors, and a textbook example of an official to whom the privilege might apply. At the other extreme, Bannon (who was charged) obviously would have the weakest privilege claim, given that he didn’t work for the government at all during the relevant time. In fact, there’s a legitimate question now about whether Trump ever actually invoked executive privilege with respect to Bannon; Trump’s own lawyer has told the feds he didn’t. Bannon’s executive privilege defense is so shoddy that his own defense lawyer whined to the judge earlier this week, “What’s the point in going to trial if there are no defenses?” (Note to counsel: there is this thing called pleading guilty.)

It’s tougher to find a distinction between Scavino (who was not charged) and Navarro (who was), given that both worked as White House advisors. It could be that prosecutors concluded that Navarro waived the privilege by yapping publicly in his book and media appearances, while Scavino did no such thing. And Scavino, as deputy chief of staff, arguably was a half-step closer to the president than Navarro, a trade advisor. All told, if you had to rank the four individuals based on the strength of their executive privilege claims, Meadows and Scavino would have the better claims, while Navarro and Bannon would rank third and fourth. 

That’s not to argue that any of the four would have a winning argument on executive privilege. In a different context, the federal courts firmly rejected Trump’s efforts as a former president to invoke executive privilege to block disclosure of White House records from the National Archives to the Committee. And even if executive privilege might be properly invoked, the court still would have to balance the factors established by the Supreme Court in the 1974 Richard Nixon case: the need for secrecy against the need for production of evidence. Properly invoking executive privilege is one thing; prevailing is another. 

Keep in mind that this ultimately won’t be a question of who is right, or more right, on executive privilege. The contempt cases against Bannon and Navarro are criminal prosecutions, so DOJ bears the burden of proving beyond a reasonable doubt that the defendants unlawfully defied their subpoenas. In other words, prosecutors must prove the defendants are wrong on executive privilege not just by a preponderance of evidence (50.0001%, essentially), but rather by the tougher “beyond a reasonable doubt” standard.

Partial cooperation. Justice Department prosecutors also may have considered that the two people who were not charged at least partially complied with the Committee’s subpoenas. Meadows produced thousands of texts to the Committee before he abruptly quit cooperating and clammed up. Scavino’s lawyers went through the motions of negotiating with the Committee before he ultimately declined to talk. 

Bannon and Navarro, by contrast, defied the Committee – outright and ostentatiously. After Bannon received his subpoena, he proclaimed: “That’s what all these committees are, that’s what they’re trying to do. … The return of Trump, and it ain’t gonna be in 2024. It’s gonna be in 2022, or maybe before.” Not to be outdone, Navarro responded to his subpoena by calling the Committee members “domestic terrorists.” Well, then.

If federal prosecutors did consider partial (or feigned) cooperation, then mark me down as a dissenter. Defiance is defiance, even if the subject went through the motions, or pretended to. On the other hand, I do acknowledge it could be difficult for prosecutors to convince a jury that a person who turned over thousands of documents, as Meadows did, should be locked up for failing to fully comply. 

And, make no mistake, if either Bannon or Navarro do get convicted, they will go to jail. The contempt of Congress law is the rare misdemeanor that carries a mandatory minimum penalty – in this case, 30 days behind bars. That’s non-negotiable; even if the sentencing judge pities the defendant, the sentence must include at least a month in federal lockup. So the stakes are real here for Bannon and Navarro, extending beyond political blowback and into the realm of loss of personal liberty. And, unlike the last time Bannon faced federal charges – in a fraud case filed by the Southern District of New York in 2020 – there won’t be any pardons this time.

It can be easy to sit on the outside and cast stones at prosecutors. Why didn’t they charge everybody? Why didn’t they do it sooner? I do just that, quite often, in this space and elsewhere. But these decisions on contempt were nuanced and difficult, presenting prosecutors with virtual no-win situations: either take on a tricky and politically contentious prosecution, or risk the perception that you’re letting a powerful person walk scot-free.

The Justice Department ended up splitting the baby here. In so doing, it has sent a decidedly mixed message to other potential witnesses in congressional proceedings: if you defy a subpoena, then you might be prosecuted. (Or, you might not.)

But it appears that DOJ wasn’t focused on making any particular kind of statement here, and rightly so. It’s not the job of prosecutors to send messages; it’s their job to take a hard look at the law and evidence and make a call. Agree or disagree with the outcome, it looks to me like that’s what the Justice Department has done here. 

Stay Informed,