Former White House chief of staff Mark Meadows will not testify in Congress’s probe of the Jan. 6 “Stop the Steal” rally amid a burgeoning legal battle over executive privilege, according to Meadows’s lawyer.
The Jan. 6 committee was formed in June in a mostly party-line vote, as all but two Republicans—Reps. Adam Kinzinger (R-Ill.) and Liz Cheney (R-Wyo.)—voted against forming the commission. The committee is led almost exclusively by Democrats, with Kinzinger and Cheney the only Republicans sitting on the panel.
For weeks, tension has been building between the mostly Democratic panel and former President Donald Trump.
The commission has subpoenaed documents and testimony from former Trump officials regarding the Jan. 6 rally. Trump has maintained that he and former administration officials are exempt from providing this testimony due to executive privilege, long a mainstay in U.S. presidential politics.
This tension came to a head near the end of October, when the Jan. 6 probe advanced a contempt of Congress charge against former Trump adviser and podcast host Steve Bannon. The charge was later certified by the Democrat-held House and has been sent to the Department of Justice, which will decide whether to pursue legal action.
Trump responded to this development on his website, writing: “This is just a continuation of the Witch Hunt which started with the now fully debunked and discredited Russia, Russia, Russia Scam, quickly reverting to a perfect phone call with Ukraine, Ukraine, Ukraine, Impeachment Hoax #1, Impeachment Hoax #2, and now this. The Unselect Committee is composed of absolute political hacks who want to destroy the Republican Party and are decimating America itself.”
Now Meadows has also refused to answer Congress’s subpoena, claiming as Trump and Bannon have that the subpoena is illegitimate since Meadows is protected under the umbrella of executive privilege.
George Terwilliger, Meadows’s lawyer and a Republican ally, said in a statement, “Mr. Meadows remains under the instructions of former President Trump to respect longstanding principles of executive privilege.”
Terwilliger denounced the attempted subpoenas, writing that they’re “contrary to decades of consistent bipartisan opinions from the Justice Department that senior aides cannot be compelled by Congress to give testimony.”
President Joe Biden, he wrote, “is the first President to make no effort whatsoever to protect presidential communications from being the subject of compelled testimony.” Biden himself is in favor of the largely partisan commission, and has made no efforts to defend Trump’s legal privilege as the former executive.
“It now appears the courts will have to resolve this conflict,” Terwilliger wrote.
Thus far, the courts haven’t sided with Trump. On Nov. 10, Obama-appointed District Judge Tanya Chutkan ruled against Trump’s claim to executive privilege.
Chutkan explained her decision, admitting that “executive privilege may extend beyond a president’s tenure in office,” but saying “the privilege exists to protect the executive branch, not an individual.”
“The incumbent president—not a former president—is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the ability of future executive branch advisors to provide full and frank advice,” she said.
In short, the claim was rejected on the grounds that Biden, as the sitting executive, hadn’t asserted executive privilege over the requested documents.
A similar situation arose while Biden was the vice president in President Barack Obama’s administration.
In June 2012, Republicans subpoenaed the Justice Department for documents related to Operation Fast and Furious, in which the federal government sold guns to Mexican drug cartels. Attorney General Eric Holder, head of the Justice Department, refused to turn the requested documents over to the House Committee on Oversight and Reform after Obama asserted executive privilege; Republicans in the committee quickly voted to charge Holder with contempt of Congress the same day.
After being certified by the Republican-led House, the Justice Department—led by Holder—refused to pursue a conviction, citing Obama’s claim to executive privilege.
Despite a long-standing precedent by the Justice Department to accept executive privilege over legislative subpoenas, it has significantly less precedent in the Supreme Court.
In United States v. Nixon, the Supreme Court ruled that the president was protected from subpoenas by the judicial branch, but left the standing of legislative subpoenas somewhat unclear.
While this case clarified executive privilege over judicial subpoenas, only two federal cases have been heard on legislative subpoenas, according to research by the Congressional Research Service, and neither of those cases made it to the Supreme Court (pdf).
Thus, there is little Supreme Court precedent for this case and Trump’s legal team may take advantage of this to bring a claim before the conservative-leaning Supreme Court.
Currently, the Jan. 6 committee has brought subpoenas against others in the former president’s administration, including White House press secretary Kayleigh McEnany and senior adviser Stephen Miller. These officials, like Bannon and Meadows, are likely to refuse to hand over subpoenaed information as Trump continues to encourage his former administration to hold their silence on grounds of executive privilege.
Zachary Steiber contributed to this report.