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Dear Reader, 

What on god’s green earth is up with Mark Meadows? Or, more precisely, what exactly is the Justice Department doing on the Meadows contempt case? 

We know where Meadows stands. The former White House chief of staff started to cooperate with the January 6 Committee, turned over a slew of damning texts and other documents, suddenly reversed course and clammed up behind a murky invocation of executive privilege, and got himself cited for contempt by the House of Representatives. That contempt vote happened on December 14, 2021. If you’re keeping count – and I am – that was 87 days ago. Yes, a full four-score-and-seven. Ever since then, the Justice Department has been mulling whether to charge Meadows for criminal contempt of Congress. 

When faced with a similar (but not identical) decision about whether to charge Steve Bannon with contempt of Congress – a misdemeanor carrying a max of one year behind bars and an unusual one-month mandatory minimum – DOJ took just 22 days to indict. No question, the Bannon case was more straightforward. He stonewalled the Committee entirely, whereas Meadows did partially comply. And Bannon, who did not work in the Executive Branch at the time of the communications at issue, has a weaker executive privilege defense than Meadows, who was former President Donald Trump’s chief of staff when January 6 went down. Further complicating the decision on Meadows, a 2008 internal DOJ memo advises that federal prosecutors “may not bring before a grand jury criminal contempt of Congress citations, or take any other prosecutorial action, with respect to current or former White House officials who declined to provide documents or testimony” based on an assertion of executive privilege by the president. (We don’t know for sure whether DOJ will abide by this recommendation, or whether this policy applies to an invocation of privilege by a former president.) 

So let’s stipulate that it’s not an easy call to prosecute Meadows. But no matter where one might fall on the ultimate merits of the case, the delay is confounding. 

I see three possible explanations for the twelve-weeks-plus (and counting…) time lapse.

First, maybe DOJ is still investigating, or at least considering its options. But this is not a case that requires extensive legwork. Prosecutors of course have to know the specifics about the Committee’s subpoena to Meadows, and his response. But factually, that’s about it. There isn’t any obvious need for time-consuming investigative tactics. Prosecutors don’t need to obtain and pore over voluminous phone records or financial documents or witness interviews. The legal issues are novel and complex, for sure. But twelve weeks is more than enough time to do the research and make a call. Perhaps there’s a split of opinion within the Justice Department, and maybe the final decision simply has not yet been made. However you slice it, we are well beyond the amount of time this type of determination ordinarily ought to take.

Second, it’s possible the Justice Department has already decided not to prosecute Meadows, but has not yet announced that outcome to Meadows or the public. Prosecutors commonly do inform a potential target if a decision has been reached not to charge; it’s a matter of basic fairness and courtesy not to keep a person needlessly dangling in the wind. But there is no formal requirement within DOJ or in the law that the Department notify a target or make a public statement when it closes out a case without a charge. So if DOJ has already determined not to charge Meadows, they could be holding off on revealing that decision because they understand that such an announcement will kneecap the Committee. Why would other reluctant witnesses – and there are many still out there, as I discussed here – cooperate with the Committee without the looming threat of criminal contempt charges? Eliminate (or minimize) the possibility of a criminal contempt indictment, and the Committee has little or nothing left to compel testimony, or to punish noncompliance. 

Third, perhaps DOJ is intentionally slow-playing this one. The Department is in a tough spot here, with no easy out. If they do charge Meadows, they’ll take on a difficult, high-stakes, high-risk prosecution that will be spun by some as a political attack on a key player in the prior administration. If DOJ does not charge, they’ll be perceived as soft, and they’ll undermine the Committee, as discussed above. 

So, just maybe, DOJ has put this decision on ice, for now. The hope would be that, in the meantime, Meadows and the Committee reach some kind of mutually face-saving agreement. Maybe Meadows provides a few more documents, or answers some limited set of questions, and both sides call it a day – sparing DOJ from having to make a call in the first place. There’s no particular indication that Meadows and the Committee are negotiating, though that certainly could be happening behind closed doors. And both sides would have some incentive to find a middle ground. Meadows would avoid the possibility of a criminal charge, and the Committee would get some additional information from him (and would avoid the possibility of having its own authority undercut by a DOJ decision not to charge). 

Taking a broader lens, if Attorney General Merrick Garland decides not to prosecute Meadows, it will send a message about his willingness to take on a difficult, high-stakes prosecution with unavoidable political dimensions. If Garland is reluctant or unwilling to greenlight a misdemeanor charge against the former chief of staff, then how likely is he to sign off on multiple felony charges against the former President? It’s not an apples-to-apples comparison; the facts and law in both cases are vastly different. But the decision about Meadows will give us a glimpse into Garland’s mindset. Is he willing to take on tough cases against powerful subjects? Or will DOJ steer clear of anything that might cause political turbulence?   

Over the past 87 days, the Meadows case has gradually fallen off the public radar. In part, that’s because Russia’s unprovoked attack on Ukraine has rightly taken over the front pages. But even before the Russian offensive grabbed the world’s attention a few weeks ago, the Meadows case already was receding from view. Perhaps DOJ (and Garland, and the Committee, and Meadows) are relieved at that development. But eventually somebody is going to have to make a call. And every additional day that passes casts more doubt on the Justice Department’s resolve.

Stay Informed, 

Elie