What's next for Mark Meadows? Ex-Trump chief of staff faces Justice decision on contempt

WASHINGTON – Former White House chief of staff Mark Meadows sent an email that said the National Guard would be present to “protect pro Trump people” on Jan. 6, when a mob attacked the Capitol.

He also contacted Georgia officials and visited the state before the attack to ask about alleged election fraud. And Meadows exchanged text messages with an organizer of a rally where former President Donald Trump spoke Jan. 6 before the attack.

Those are a few reasons why the Jan. 6 Select Committee to investigate the attack on the U.S. Capitol wants to talk to Meadows.

The committee voted unanimously Monday to recommend the House cite Meadows for contempt for defying a subpoena and urge the Justice Department to prosecute him criminally. The full House did just that, voting 222-208 on Tuesday night.A Justice Department decision could come within weeks.

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It's just the latest clash between a former Trump administration official and the committee, as Meadows and other members of Trump's inner circle defy subpoenas, arguing executive privilege protects them from sharing what they know.

“He changed his mind and told us to pound sand. He didn’t even show up," said Rep. Bennie Thompson, D-Miss., the committee chairman. “He has no credible excuse for stonewalling the Select Committee’s investigation."

Thompson said nearly 300 witnesses have cooperated with the committee, which received 30,000 records. The top Republican on the committee, Rep. Liz Cheney of Wyoming, said the White House knew the attack was serious because lawmakers, television hosts and his own son sent texts to Meadows.

Lawmakers who weren’t named said they were “under siege” and “someone is going to get killed,” Cheney said. Fox hosts Laura Ingraham, Brian Kilmeade and Sean Hannity each told Trump through Meadows to tell the mob to go home, Cheney said. The president’s son Donald Trump Jr. said “it has gone too far and has gotten out of hand,” Cheney said.

Jan. 6 panel report: Jan. 6 committee report: Meadows said National Guard would 'protect pro Trump people'

What does the committee want from Meadows?

The committee is investigating what led to the Jan. 6 attack on the Capitol, which injured 140 police officers and temporarily halted the counting of Electoral College votes that certified Biden’s victory over Trump. Lawmakers want to track minute by minute what Trump was doing to document whether he incited the mob and how he responded to the attack.

In a 51-page report, the committee summarized its findings so far regarding Meadows and explained what other questions lawmakers hope to ask.

Meadows participated in meetings and calls – including at least one in the Oval Office with Trump and members of Congress – where participants reportedly discussed the need to ‘‘fight’’ back against ‘‘mounting evidence’’ of purported voter fraud, the report said.

One call before the Jan. 6 attack involved Trump, campaign lawyers, lawmakers and “some 300” state and local officials to discuss the goal of overturning the 2020 election, the report said. The allegations continued after courts had considered and overwhelmingly rejected Trump campaign claims of voter fraud and other election irregularities.

Pleas for help in text: Fox News hosts, Donald Trump Jr. implored Mark Meadows to help stop Jan. 6 riot, committee says

Meadows traveled to Georgia to observe an audit of the votes in a state Biden won. In one call Meadows joined with Georgia Secretary of State Brad Raffensperger, Trump pressed his claims of widespread election fraud, according to the committee report. In a recorded call in December, Trump had asked Raffensperger to “find 11,780 votes, which is one more than we have.”

A member of the investigating committee, Rep. Zoe Lofgren, D-Calif., said that the White House directed the Justice Department to follow "crazy" conspiracy theories about the election and that Meadows made “a surprise visit to the state-run audit in Georgia."

“We need to talk to Mark Meadows about that,” Lofgren said. “It certainly appears that Mr. Meadows played a key role in events that culminated in the violent attack on the Capitol and on our democracy.”

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Meadows reportedly sent an email to a member of Vice President Mike Pence’s senior staff containing a memo written by an attorney affiliated with Trump’s reelection campaign, John Eastman, that argued how he could declare electoral votes in six states in dispute when they came up for a vote during the Joint Session of Congress.

Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain states to send alternate slates of electors to Congress. One lawmaker acknowledged the plan was “highly controversial.” Meadows responded, “I love it," according to the committee report.

Meadows was in contact with at least some of the people who planned and organized the Jan. 6 rally at the Ellipse where Trump urged his supporters to fight for the country. One organizer told Meadows ‘‘things have gotten crazy and I desperately need some direction. Please," according to the report.

Thompson told Meadows' lawyer, George Terwilliger, in a letter Dec. 7 that lawmakers want to ask Meadows about documents he has already provided.

"There is no legitimate legal basis for Mr. Meadows to refuse to cooperate with the Select Committee and answer questions about the documents he produced, the personal devices and accounts he used, the events he wrote about in his newly released book, and, among other things, his other public statements," Thompson said.

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Why won't Meadows talk to the committee? And does he have an argument?

Terwilliger urged the committee not to pursue contempt charges because Meadows defied the subpoena for testimony and documents to preserve the confidentiality of communications with Trump.

Executive privilege is a right presidents have claimed under the Constitution to withhold certain information and documents from other branches of government and the public.

But legal experts said executive privilege wouldn’t cover conversations with rally planners, Georgia officials or the National Guard. Even for Meadows’ communications with Trump, President Joe Biden waived executive privilege, which the D.C. Circuit Court of Appeals said outweighed Trump’s claims of confidentiality.

Paul Rosenzweig, founder of Red Branch Consulting and a former senior counsel to independent counsel Ken Starr, who investigated President Bill Clinton, said Trump and his allies appear to be stalling with the hope that Republicans win back control of the House in 2022 and end the investigation.

Meadows is "definitely trying to run out the clock, as is Trump,” Rosenzweig said. “By and large, the Trump team has identified due process as the Achilles' heel of the judicial system. They are playing for delay everywhere.”

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Meadows previously served seven years in the House. Rep. Adam Kinzinger, R-Ill., called the vote “a unique moment in history” because the last time a former member was held in contempt was in 1832, when former Rep. Sam Houston was reprimanded for assaulting a former colleague.

“He thought carefully about his actions and actively chose to stonewall,” Kinzinger said of Meadows providing 9,000 documents and then refusing to testify. “This constitutes legal contempt, but also personal contempt.”

Rep. Jamie Raskin, D-Md., said Meadows has no right in the constitutional system to defy a House subpoena. Raskin noted that Meadows, while he served in the House, insisted high-ranking Obama administration officials comply with congressional subpoenas and called the defiance "reprehensible" and "wrong."

“Mr. Meadows’ sudden vanishing act is intolerable to the rule of law and to the work of our committee,” Raskin said.

Cases involving Meadows, political strategist Steve Bannon and former Justice Department official Jeffrey Clark – and Trump’s own appeal of a subpoena to the National Archives and Records Administration – are redefining the relationship between the executive branch and Congress. The last major Supreme Court case that set a framework for executive privilege came nearly 50 years ago during the Watergate scandal.

“I think these cases are likely to clarify” executive privilege, said Mark Graber, a constitutional law expert at the University of Maryland Carey Law School.

What has the Supreme Court ruled?

Legal experts said the 1974 Supreme Court ruling in U.S. v. Nixon appeared to compel testimony despite claims of executive privilege unless confidentiality was justified for subjects such as national security.

The case forced President Richard Nixon to turn over tape recordings for the criminal investigation related to the break-in at the Democratic National Committee at the Watergate Hotel.

Graber said there are two major legal issues for Meadows. One is that Congress must demonstrate a reason for compelling testimony related to legislation.

Congress can’t subpoena a football coach to ask why he called one play and not another, Graber said. But Congress is investigating an insurrection, which Graber said is a “fairly easy” call.

“Congress is trying to investigate exactly what happened, how this can be prevented in the future,” Graber said.

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The other legal question deals with executive privilege, which Graber said has been “notoriously vague.” In a court challenge, Congress would need to demonstrate why the information should be made public with specific questions for a specific legislative goal, he said. A judge could review claims of executive privilege confidentially and then decide whether to enforce a subpoena in public, he said.

“Congress can’t go on a fishing expedition,” Graber said. “It has to be understood, of course, that Congress can’t be as specific as Congress would like without having seen the documents.”

Courts grapple with executive privilege

Decisions about executive privilege have already begun to take shape. U.S. District Judge Tanya Chutkan and a three-judge panel of the D.C. Circuit Court of Appeals each ruled that Biden waived executive privilege when Trump tried to block the committee from receiving contested administration documents from the National Archives and Records Administration.

The courts ruled that Biden’s waiver outweighed Trump’s argument that revealing the communications would prevent future presidents from receiving the best advice.

"We do not come to that conclusion lightly," the ruling said. "The President and the Legislative Branch have shown a national interest in and pressing need for the prompt disclosure of these documents."

Despite the ruling, Terwilliger revived the argument in urging the committee not to find Meadows in contempt.

“These protections do not exist for the personal benefit of any executive advisor, but to protect the institution of the Presidency,” Terwilliger said in a letter to the committee. “The immunity from compulsion must also extend to former aides for if mere passage of office from one administration to the next extinguished the privilege, it would be no privilege at all."

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But the committee report alleged Meadows hasn’t provided any justification for a claim of executive privilege.

“Mr. Meadows has refused to provide the Select Committee with information and testimony that has no conceivable, associated privilege claims,” the report said.

Justice Department faces 'a case they can't lose'

Now that the House has approved the contempt measure, the Justice Department must decide whether to prosecute Meadows. A conviction for criminal contempt carries a penalty up to a year in prison and a $100,000 fine.

The committee is scheduled to meet Thursday with Clark, who has also refused to answer questions from the panel. The committee recommended a contempt citation and urged the Justice Department to pursue criminal charges but postponed a House vote to allow for the meeting. His lawyer told the committee Clark will refuse to answer questions based on his Fifth Amendment right to protection against self-incrimination.

Attorney General Merrick Garland’s decision to indict Bannon came about three weeks after the House cited him for contempt. Bannon has vowed that he will fight the charges, and his trial is set for July 18.

While Garland was criticized for the pace of the decision, Rosenzweig said, three weeks was fast for a major case, and the department should be careful.

“This is a case they can’t lose,” he said. “If they lose, Congress becomes a neutered thing for the rest of eternity.”

Contributing: Richard Rouan

This article originally appeared on USA TODAY: Mark Meadows: What's next as he faces criminal charge over Jan. 6?