Litman: Can the Jan. 6 committee corral prime witness Mark Meadows? It’s tricky
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Now, Stephen K. Bannon has turned in his anger and vengeance to face criminal contempt of Congress charges. The Jan. 6 House Select Committee’s attention turns to Mark Meadows, President Trump’s former chief of staff. Meadows refused to turn over subpoenaed papers or show up for a scheduled hearing.

Based on the current war of words Meadows and the committee have become at odds and another criminal contempt referral has been made.

Committee member Rep. Adam B. Schiff (D-Burbank) said on “Meet the Press” on Sunday that Meadows’ recalcitrance “pretty much forces our hand…. I’m confident we’ll move very quickly against Mr. Meadows.”

Meadows’ counsel, former Deputy Atty. Gen. George Terwilliger, wrote in the Washington Post last weekend that “the only path to resolution may run through the courts.”

On Tuesday, the committee chairman, Rep. Bennie Thompson (D-Miss.) announced he’d sent a letter to Meadows: “We need these questions answered.”

But Meadows’ case is very different from Bannon’s. He and the committee both have a lot at stake from a criminal referral. This suggests they might still find a solution.

The major downside of criminal contempt charges against Meadows is that the committee would lose access to Meadows’ information and personal information. The case would be decided by federal court. Until that time, which would almost certainly be after the effective lifetime of the Jan. 6, committee, Meadows and his information would remain confidential, no one would ever be questioning him. That was a price the committee was willing and able to bear with the ever-combative, garrulous Bannon. There are many public statements that he has made that the committee could use — recall his Jan. 5 podcast, “All hell is about to break loose tomorrow”.

Not for Meadows, who tried to keep out of the public eye during the rampage. He is Trump’s primary minder at end and perhaps the best source of information about his movements, statements, communications, and emotions on Jan. 6. news reports indicate that Meadows may have been involved with the efforts to get Trump votes in Georgia, and in the planning of the Capitol conflagration. His evidence will not be lost to criminal proceedings, according to the House committee.

The committee cannot predict the outcome of a criminal referral. It does not know what details led to the decision by the department to indict Bannon. Meadows’ communications to Trump were different from Bannon’s and could be eligible for executive privilege protection. Meadows could be referred to the Justice Department by the committee. The Justice Department may evaluate Meadows’ criminal intention differently than Bannon’s.

The Bannon indictment was a victory for Congress’ investigative powers (and the rule-of-law) after the Trump years in which congressional subpoenas had been casually and successfully ignored. A Meadows referral could make Congress look like a paper tiger if it came out the wrong way.

If the committee has good reasons to avoid a criminal referral then Meadows is right. His demeanor is far from that of Bannon’s bring-it-on pugillism. Outlaw status has nothing to do with him. He is not known to have the resources to pay for federal court criminal defense. He hoped for a career in D.C.’s most important professional circles after his stint at the White House. These prospects would be destroyed if not completely destroyed if he was convicted of contempt of Congress.

It is possible that the committee may bring a civil contempt action against Meadows. If the process could be completed quickly and if it succeeds, Meadows would likely be sent to jail and remain there until he obeys the subpoena.

Unfortunately, until recently, Team Trump has been able to string along civil cases aimed at investigating the former president for a year or more, effectively taking the civil option off the table. The federal courts have moved at lightning speed (compared to others) to review Trump’s case and reject the request for documents. Thompson and Co. cannot be certain of a swift civil contempt action. The committee might find itself in the same rut of delay and stonewalling.

It is galling to think that Meadows may evade his legal responsibility to fulfill a congressional demand that is exceedingly important. Meadows and the committee are engaged in a game called chicken in which both sides run the risk of losing something very important — Meadows’ liberty and livelihood as well as the committee’s critical testimony. Sometimes, games of chicken can end in dramatic crashes. Sometimes, there is an outright winner. The outcome of a fight is often not all or nothing. You can expect something similar to this here.

@HarryLitman

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