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Nobody better personifies the Justice Department’s perplexing, halfway-in approach to the January 6th investigation than Mark Meadows.
DOJ has now subpoenaed Meadows – sorta – but, by all appearances, they’re also nowhere near either charging him or fully flipping him. This one seems likely to land somewhere in that unsatisfying middle: Merrick Garland’s Justice Department will be able to say they “investigated” Meadows and other power players, but the effort ultimately seems destined (calibrated, perhaps) to land short of the top bosses.
The Justice Department under Garland has a spotty history on Meadows. You’ll recall that Meadows was one of the first people who received a subpoena from the House January 6th Committee, back in September 2021. He got off to a flying start, producing thousands of damning texts in which various powerful elected officials and advisors begged him to get Trump to do something, anything, to stop the violence at the Capitol. Memorably, Trump’s own son felt it necessary to go through the chief of staff to reach his own dad: “He’s got to condemn [sic] this shit. Asap. The Capitol police tweet is not enough.”
Meadows was a fount of revealing information for the Committee – until he wasn’t. We still don’t know why he had a sudden change of heart but, whatever the cause, he went from tell-all to lockbox. The House then voted Meadows in contempt of Congress and sent the case over to DOJ for a charging decision. Garland, in turn, took about six months before announcing late on a Friday night that Meadows would not face contempt charges. Sorry about the little dustup, Mr. Meadows, you can be on your way.
News broke last month that the Justice Department had served a criminal grand jury subpoena on Meadows. Let’s pause for a moment to reflect on the ridiculousness of this. Here we have Meadows, who was at Trump’s side for essentially every crucial meeting before and during January 6th. He might as well have worn a sandwich board reading, “Subpoena Me, Please!” Yet it took federal prosecutors well over a year even to ask Meadows, ever so politely, for evidence.
The Justice Department’s belated approach to Meadows is in keeping with its reactionary posture on other key witnesses to the coup attempt. From Cassidy Hutchinson to Pat Cipollone to Eric Herschmann, DOJ has meandered into the fray only after crucial witnesses testified before the January 6th Committee, or were the subject of revealing journalistic scoops. According to the New York Times, federal prosecutors watched Hutchinson’s testimony on television and “were just as astonished by her account of former President Donald J. Trump’s increasingly desperate bid to hold on to power as other viewers.” Not only does DOJ’s reactionary approach bespeak a lack of urgency and focus, but it also undermines their ability to use those witnesses effectively down the line, as I discussed here. It’s terrible form, and self-defeating, for prosecutors to allow key witnesses to be subjected to extensive public questioning before their testimony in the grand jury and, eventually, at trial.
Yes, I know, DOJ spent the first year-plus prosecuting over 800 Capitol rioters, and those cases were important and resource-intensive. But, really: there’s no way DOJ could have fired off a subpoena to Meadows in the meantime? Sure, DOJ was busy building “from the ground up,” as Garland is fond of phrasing it. But couldn’t DOJ have aimed high at Meadows and others in Trump’s inner circle, right from the start? Was it necessary to go through more than a year of wheel-spinning first?
Meadows has reportedly complied with DOJ’s grand jury subpoena. But word choice is important here; “comply” is not the same as “cooperate.” It turns out that all DOJ requested, and all Meadows provided, is… the exact same materials he already had given to the House January 6th Committee. Yep: the very same batch of selected texts that he mysteriously decided to delimit, at his own whim. DOJ just as well could have gotten the texts from the Committee itself – or, at this point, with a few well-crafted Google searches.
I understand, to an extent, DOJ’s prior decision not to charge Meadows with criminal contempt of Congress (as I wrote here). That case, after all, related to a congressional subpoena, and Meadows did partially comply. But grand jury subpoenas are different. There’s no such thing as partial compliance – or, at least, prosecutors need not settle for half-measures. Grand jury subpoenas are the real deal, the muscular big brother to the scrawny, sporadically-enforced congressional sibling. You can mess with a congressional subpoena and escape consequence-free. (See Exhibit A: Meadows, Mark.) But that nonsense doesn’t fly with a grand jury subpoena, where the only practical outcomes are compliance, invocation of the Fifth Amendment, or criminal contempt and imprisonment. Nobody blows off a grand jury subpoena and gets away with it.
So then why, oh why, would the Justice Department serve Meadows only with a half-way subpoena? Why would they settle for a subpoena that says, effectively, “Give us everything you already gave to the January 6th Committee” – when they just as easily could have commanded, “Give us everything you have, period.”
DOJ reportedly is in the process of litigation with “an expanding circle of close Trump aides” over the contours of their grand jury subpoenas, so perhaps prosecutors are working to get some of the other, more important information that Meadows withheld from the Committee. But there’s also a universe of important testimony and other evidence that Meadows holds that he has not yet produced and cannot be reasonably subjected to executive privilege claims. With respect to those materials, there’s no reason why the Justice Department needs to tiptoe around. Federal prosecutors hold the power here, not the former chief of staff. But now, owing to DOJ’s tepid approach, they’re locked in a slow-motion waltz that promises to yield only partial and belated answers from Meadows, if any at all.
Back in my prosecutor days, we would sometimes say to people in Meadows’s position: don’t jump halfway across the ditch. Either jump all the way – come fully clean, tell us everything you know, and get the benefit of full cooperation – or don’t jump at all. It’s sound advice to any witness or potential defendant. But it’s also applicable, in this instance, to the Justice Department itself.
It’s a shame, too, because Meadows is potentially a source of unique and invaluable information. He had unparalleled insider access to key Trump conversations and meetings before and on January 6. If I was prosecuting this case and could magically have the benefit of full and truthful testimony from only one person, I’d choose Meadows. But DOJ seems more intent on playing nice – and, once again, slow – than relentlessly pursuing the full truth.