Thread by @BarbMcQuade

DOJ says decision to treat Meadows and Scavino differently from Navarro and Bannon for contempt of Congress is based on “facts and circumstances.” What facts and circumstances could make a difference when flouting a subpoena? Here are some possibilities … nytimes.com/2022/06/03/us/…

1. Unlike Bannon and Navarro, who refused to engage with the Jan 6 Committee at all, Meadows made some effort to comply with his subpoena, producing documents and emails before abruptly stopping. Meh.

2. Second, proving contempt requires showing not just failure to comply with a subpoena, but also willfulness. That means the defendant must KNOW his conduct is illegal. Here, the two sets of men have different situations regarding privilege.

3. Bannon and Navarro’s privilege claims are laughable. Bannon was not even in exec branch at the time. Navarro has already waived any privilege claim by telling his story in a book & media interviews. For some reason, he keeps confessing to @AriMelber.

4. On the other hand, Meadows & Scavino, as Chief of Staff & Deputy, were Trump’s closest advisors. Even if they were wrong about executive privilege, it will be hard to prove to a unanimous jury beyond a reasonable doubt that they KNEW they were wrong. (Though not impossible.)

5. Also, a 1984 DOJ Office of Legal Counsel opinion says executive branch officials who rely on executive privilege should not be charged with contempt of Congress. The goal is to protect and encourage candid communications between a POTUS and advisers.

6. Ironic that Meadows and Scavino benefit from a policy designed to protect the institution of the presidency when they appear to have been scheming to destroy that very institution. But these decisions take the long view. Assuming, of course, the institution continues to exist.

7. There may also be strategic reasons for the different decisions. Criminal charges are used when you believe compliance is not possible or desirable. Bannon and Navarro are such loose cannons that they would make poor witnesses anyway. DOJ is done with them.

8. Criminal prosecution is about holding people accountable for breaking the rules. DOJ seeks to punish Bannon and Navarro to make examples of them to deter others in the future.

9. But if instead you want to induce testimony, it’s better not to use criminal charges. Negotiation and civil lawsuits can be more effective for this purpose. A judge in a civil case can jail a defendant until he testifies. Meadows and Scavino may be in this camp.

10. In addition, DOJ policy says criminal charges should not be filed if there is an adequate alternative remedy. Meadows has a pending civil suit challenging the subpoena that will resolve soon. That case could result in a court order to comply with the subpoena.

11. There may also be strategic reasons to decline charges against Meadows and Scavino. They may be cooperating with DOJ. Seems unlikely in light of their public statements but people often talk tough before personal consequences help them see the light. See Michael Cohen.

12. It may also be that DOJ considers Meadows and Scavino not as witnesses but as targets in a conspiracy to defraud the United States in the lawful transition of presidential power.

13. Charging them now could complicate that conspiracy investigation, in part, because Sixth Amendment rights would attach. Among other things, DOJ could not use informants against them. Eyes on the prize.

14. As unsatisfying as this decision is, I remain confident that DOJ is not simply shrinking from its duty. I hope that Garland’s abundance of caution will make the charges all the more credible if and when they come.

15. There are many reasons to proceed cautiously when investigating a case as serious as Jan 6. But it’s also important to hold accountable anyone who may have conspired to take down our democracy. I take Garland at his word when he says he will pursue anyone “at any level.”

16. In the end, there is no way charge a former president cautiously. At some point, Garland will be asked to be bold. Let’s hope he is up to the challenge.

Also, the world has changed since Garland was last at DOJ. Increased scrutiny means the public expects more explanation than in the past when people simply trusted public officials to do their jobs. Explaining decisions as much as possible is important to public confidence.