Will Mark Meadows Be Indicted?

any more documents. Republican Representative Liz Cheney read aloud some of the tech sent to Meadows from his son and Fox News host during the riot. He's got to condemn this asap. The Capitol Police tweet is not enough. Donald Trump Junior texted. Meadows responded, quote, I'm pushing it hard. I agree. President needs to tell people in the Capital to go home. This is hurting all of us. He is destroying his legacy. Laura Ingram wrote, please get him

on TV, destroying everything you have accomplished. Brian Kilmead texted, joining me as former federal prosecutor Robert Mintz, a partner, McCarter and English Bob. How significant is the vote to home Meadows in criminal contempt? It was a near party line vote. Well, it is a big deal because what we have here is a majority of the House of Representatives, albeit a democratically controlled House, found that one of their

own needs to be indicted for lack of cooperation. What we have here is Mark Meadows, who is a former congressman from North Carolina, and who is, by the way, familiar with congressional oversight and who himself had argued for congressional oversight when he was a member of Congress during the Obama administration, but is refusing to testify before the

House in connection with the January six committee. So the fact that the House Committee voted to hold him in contempt on the full House later approved that really speaks to how central they believe Meadows is to their understanding of what happened on January six. Is the Justice Department likely to charge Meadows, Well, that's really the great question here. What we do know is that this is a giant headache,

both politically and legally for Attorney General Merrick Garland. This is not a decision that he is likely happy to be faced with, but ultimately this will rest at his feet. It will be handled initially by the U. S. Attorney's Office in the District of Columbia. But these decisions, certainly something as significant as holding a former presidential chief of staff in contempt of Congress, that's a decision that's going

to be made by Merrick Garland himself. So it's a difficult decision here because, on the one hand, if you charge him for failing to comply with the subpoena, he does risk creating a president in which future House of Representatives, which could be controlled by the Republicans as early as next year, are in a situation where they could then seek to get testimony from current or former aids to the president, and that's something that Congress has on the

Department of Justice has historically been fairly deferential to. They have allowed sitting on former chiefs of staff to invoke executive privilege with regard to the communications they had with the president. On the other hand, if he declines to pursue this case criminally, he is in some sense hamstringing the committee's ability to investigate fully the attack on January six.

So it's a difficult decision for Merrick Garland since the Department of Justice is prosecuting Steve Bannon, does it follow that it should prosecute Meadows. I think this is a very different analysis from the analysis that the Department of Justice engaged in when it made a decision to indicte Steve Bannon for contempt of Congress. For starters, Bannon was not a White House official during the events surrounding the

January six insurrection. So that's a significant fact. You have Mark Meadows, who not only was employed by the White House, but he was President Trump's chief of staff during the insurrection. He was intimately involved in providing information to the president, providing him advice on receiving communications from the president. It puts him in the eye of the storm, so to speak. But it also puts him in a position to claim executive privilege in a much stronger way than Steve Bannon can.

So how does it cut Because Meadows could say, well, I turned over as much as I could turn over. I cooperated with the committee. But now we've reached a point where I can't turn it over anymore and I can't discuss any of this. I mean, is it in his favor that he turned over nine thousand pages or does it cut against him. Well, it does show some effort to cooperate with the committee, but he has not yet testified and answered questions about these issues before the committee.

He's claiming that executive privilege prevents him from answering these questions, and he's refusing to appear to answer even based the questions that the Committee says still involve a claim of executive privilege. And the Committee does point to a series of examples of areas of inquiry which they say even if executive privilege were to apply, which they dispute, it would certainly not come into play if Meadows were asked

to talk about certain topics. For example, the Committee is going to ask Meadows to talk about conversations he had with the chief of staff to the acting Defense Secretary during the January six insurrection. They want to ask him about text messages he exchanged allegedly with the organizer of the January six rally on the Ellipse that day that

preceded the attack. They want to ask him about apparent efforts to encourage Republican lawmakers in certain states to send alternate slates of electors to Congress in an attempt to undo President Biden's win, and they also want to talk about claims of election fraud that Meadows allegedly forwarded to

the Department of Justice for further investigations. The Committee's position is, even if there is an executive privilege that attaches here to some of the areas of inquiry, they certainly don't apply to these topics, and therefore he needs to appear

before the committee to answer these questions. The committee claims that Meadows waived executive privilege by turning over all the documents and by writing a book, and are in his claims of privilege further weakened by the DC Court of Appeals ruling rejecting former President Trump's claim of executive privilege with regard to White House documents held at the National Archives.

And that's basically resting on the fact that President Biden, who currently is the chief executive and has the right to invoke the privilege, has decided not to assert executive privilege over these records in communications and testimonies sought from former Trump administration officials in connection with the Select Committee's probe.

So that question has been answered to some extent, But at the same time, there are some issues related to executive privilege, which remain unresolved, and Mr Meadows lawyer in a lastic effort to try to convince the Committee not to refer Mr Meadows over to the Department of Justice for criminal contempt charges. He has argued that Meadows is invoking the executive privilege argument in good faith, and in order to convict somebody of a criminal charge, they have

to be acting in bad faith. It's not Mark meadows role, or frankly, his attorney's role. He argues to determine whether or not that assertion of executive privilege is going to be upheld or not. As long as he is arguing in good faith that executive privilege is being invoked by former President Trump, that is his defense, and that is why the Committee is focusing on lots of areas where they're arguing executive privilege would never apply, even if it

would ultimately be upheld by the court. But as you say, so far, the courts have viewed it unfavorably and narrowly construed executive privilege to say that it really belongs to the current occupant of the White House, and a former president cannot invoke a sweeping exercise of executive privilege as former President Trump is attempting to do here. It's less than two weeks now that Trump hass to appeal that

DC Circuit decision to the Supreme Court. So if the Supreme Court takes the case, we'll have to wait for that decision. If it doesn't take the case, then the d C Circuits decision is the final word. Yeah, that's right, and then I think, as you say, to invoke executive privilege when that decision has essentially been final by the d C Circuit will be a much tougher hill to climb.

Right now, it's still undecided because the Supreme Court may take the case, and the Supreme Court may decide something different than the d C Circuit. So that's why Mark Meadows and a lawyers can continue to try to assert

that privilege. And that's why the Committee is trying to circumvent that argument by focusing on all the text messages and all the emails that they already have from Mr Meadows and argue that these are issues, and these are conversations, and these are meetings that don't involve the president, and therefore any claim of executive privilege here would not be appropriate.

The Committee is also pointing to a new book by Meadows called The Chiefs Chief about his role in the White House, and the Committee says that's evidence that his refusal to testify was untenable. How do you refuse to testify when you have a book out? Well, that does raise an interesting question, and it goes directly to that good face defense that Mark Meadows is trying to raise.

He's trying to claim that he is relying in good space on the assertion of executive privilege by former President Trump, and if it is a good face assertion, it is appropriate because just remember that privileges do exist that you try. Any client privilege is something that people are most familiar with conversations between a client and an attorney, and an attorney and a client, and connect you with seeking legal advices and valid reason not to answer questions in a

courtroom or during a deposition. So so privileges are frequently raised in the course of committee hearings and in the course of litigation. It's not unusual nor is it inappropriate. But in this case, the committee suggesting that the executive privilege assertion rings hollow because Mr Meadows is going out and speaking to other media outlets he's promoting his book and he's talking. They say about the very same topics that he is now refusing to appear before the committee

and testify about. Is it a good faith effort even though he didn't appear before the committee and did not assert privilege on a question by question basis, As you know, you've said, is the way this is normally done? Yeah, no,

that is is exactly right. You don't get to send, least say that because there's an executive privilege looming out there, or any privilege frankly out there, whether it's attorney client privilege or any other potentially valid privilege, you simply can't use that as a blanket refusal to appear for testimony, whether it's in a deposition or before a committee or

during a trial. You have to exercise that privilege on a question by question basis, because certain questions would not fall within the privilege and others might, and in order for some court to ultimately determine whether or not the privilege the privilege is being asserted appropriately, it has to be done on a question by question basis, and simply refusing to appear altogether on the basis that executive privilege may be implicated in some of the questioning is inappropriate,

and that's I think the weakness in the position that Mark Meadows is taking. He really does have to show up, appear before that committee and answer some questions that don't invoke executive privilege in order for him to argue that he is making a good faith effort to cooperate with this committee, while at the same time honoring the invocation of executive privilege by former President Trump. What does recent

history tell us about this? There was also a recent history where criminal contempt charges were referred over by the Department of Justice and the Department of Justice declined to pursue them. So it's certainly not automatic because this has been referred to the d o J, that there will

be a criminal contempt charge brought against Mark Meadows. For example, in two thousand and eight, the Department declined to bring charges against President George W. Bush's chief of staff Joshua Bolton and former White House counsel Harriet Myers, who resisted subpoenas concerning the controversial forced resignation of U S attorneys.

In two thousand and twelve, the Department likewise declined to pursue a criminal contempt prosecution against Attorney General Eric Holder who refused to turn over some documents that were related to the Fast and Furious scandal, which was a gun running staging that had gone badly wrong. So there is precedent here where the executive branch takes an expansive view

of executive privilege. And that's what really the Department of Justice has to be thinking about here, because it's not just the case of Mark Meadows that's an issue here. It's also a question of what kind of precedent they are setting and what kind of precedent will then fall to future House of Representatives when they pursue subpoenas and perhaps criminal contempt charges against other current or former close

aids of the president. Is this basically a show of force by the committee that's not going to get them the information they're looking for. Even if Mark Meadows is prosecuted and is convicted, that in and of itself will not get Congress the information as seeking to accomplish that, Congress would have to sue Meadows and have a judge hold him in civil contempt rather than criminal, then throw him in jail for refusing to cooperate with the committee.

And then the judge might order him to provide testimony. A criminal execution is only going to serve as punishment if he is charged, and if he's ultimately convicted, he may spend some time in jail, but part of that process will not be to order him to testify before Congress. Thanks Bob. That's Robert Mints of McCarter and English. It's the first effort by a government agency to hold individuals and organizations civilly responsible for the violence at the capital.

On January six, Washington d C is suing the far Ride groups, the Proud Boys, and the Oath Keepers over their role in the rioting to try to recover the millions of dollars DC spent in defending the capital. The d C Attorney General, Karl Rassin says they're trying to cause the groups as much financial pain as possible using the ku Klux Klan Act. History will show that when these acts like the klu Klux Klan Act and other laws were used against hate groups, what did they do?

What did cowards do? They go running, they go hiding, they get decentralized, and frankly, they're less dangerous. Joining me as former federal prosecutor Jimmy Grule, a professor at Notre Dame Law School. Jimmy, is this lawsuit for real or more for show? In this sense? Does DC think it's actually going to be able to recover damages or is this just d C wanting to send a message. I

think it's it's certainly more for show. There's a serious question or issue with respect to the defendants in the civil lawsuit and any money and property and resources that they maintained that could be attached to satisfy a judgment against them. But I do think that there are likely

some resources collectively that could make a difference. I mean, keep in mind that we have two organizations, the Proud Boys and the Oath Keepers, that are defendants in this lawsuit, in addition to already one members individuals that are members of these organizations, and so collectively, I think there could be some significant, substantial funds and property that could be

attached to enforce a judgment. But I think equally important is the message that is being sent here by the DC Attorney General, and that is that if you engage in this type of conduct, then you face a risk, in fact, a serious risk of bankruptcy. Because ultimately that could be the end result of these organizations and individuals could be brought to their knees financially, and that's that's

not an insignificant action or message descent. It seems as if this lawsuit is taking information that the Justice Department has unearthed in its January six investigations and sort of

repurposing it. So what would a defense be. It's going to be difficult because a couple of things with respect to the individual defendants, I think all of them but perhaps one, have actually been criminally charged for their individual roles that they assumed that they engaged in with respect to the insurrection that occurred on January six, and so they've been indicted, they've been criminal charges. That means that there's a basis, there's probable cause to believe that these

individuals have committed a crime. And so the civil lawsuit is really piggybacking on top of that and using that information to support the civil action. And of course, as you know, the civil lawsuits, the standard of proof of substantially less. It's only by a preponderance of the evidence. So they're taking information that's been generated collected in the criminal lawsuit and they're going to be using that to satisfy a civil cause of action based on a much

lower standard of proof. So I think it's gonna make it much easier for the plaintiffs to prevail in the civil lawsuit. And if you look at the civil complaint, and it's about an eighty four page document, it is really loaded with photographs of the individual defendants named in the civil lawsuit, showing them engaged in violent combat with the DC Police and the U. S. Capitol Police, showing them destroying property, specifically by forceful entry destruction of the U. S. Capital.

And so it's the old adage. I think that actions speak louder than words, and these individuals are actually caught on tape engaging in this conduct, and I think it's going to be difficult to talk that away through mere words. This lawsuit follows a jury verdict against white nationalists in Virginia just last month, and I don't think that the

timing of this is just coincidental. The civil suit against the Proud Boys and the Oathkeepers follows twenty six million dollar verdict where the jury found against the white supremacists and other hate groups that were possible for the two thousand and seventeen Unite the Right rally in Charlottesville, and so now there's a very compelling precedent here for this

type of lawsuit. The New York Times has reported that members of the Proud Boys have been increasingly appearing at local events in small communities, town council and school board meetings, for example, to bring their brand of politics. Is this a change in strategy that might work? Well? It certainly could. And there's no question that these groups, the Proud Boys and the Oath Keepers, have received a lot of support from foreign President Trump's base and kind of running to

their defense. And so I think what's happening is there just changing their strategy. I mean, this confrontation, combative strategy is what caught them in trouble with the Department of Justice and now the d C Attorney General. And so now the strategy is, well, let's try to infiltrate school boards and city councils and have an influence at that level.

And that's probably amatic, but it raises legitimate First Amendment issues, and certainly they have a right to advance their ideology, and whether you agree with it or not, it's protective, free speech. We've been learning a lot from the January six Committee, and the conclusion that some of the members have drawn is that the White House played a more substantial role in trying to overturn the election then was previously known. But I haven't heard anything about prosecutions of

some of the people. For example, Mark Meadows, is you know that's a criminal contempt of Congress. Yeah, I think we have to we have to step back the the January six Committee, the Bipartisan Committee. I think it's still in the fairly early stages of their investigation, even though I mean they've interviewed and taken depositions of of dozens, perhaps maybe even hundreds of witnesses at this point. But they're still sifting through a lot of information evidence that

they have they've accumulated. But I do think it's telling when we start hearing on on national news programs members of the of the Congressional Committee making comments about violations of federal law, that that that's why they that's why it's important that these individuals that they've subpoenaed for deposition appear before the committee because they have evidence, firsthand evidence that could support criminal violations, including obstruction of a congressional proceeding,

and so I think that's very telling that they're moving in that direction and collecting evidences could support a criminal prosecution all White House officials. And I want to ask you a question about Mark Meadows. As you know, the House is voted to hold the former White House Chief of Staff Meadows in contempt of car Congress after he stopped cooperating with the January sixth Committee. So this is the second time the Special Committee has sought to punish

a witness for defying a subpoena. The last witness who did so, Steve Bannon, was charged by the Justice Department and is facing trial in July. Is it likely that the Justice Department will also prosecute Meadows? Well, I think so again, because the alleged reason for not appearing before the Congressional Committee, the January six Committee, uh Meadows is claiming, is because he has an executive privilege, or he's claiming that's one one argument. The other is that it would

violate his right against self incrimination. But but both of those arguments are severely undermined by the fact that Mark Meadows has already disclosed thousands of pages of documents to the to the Committe. And he's also written a book, and in the book he discloses information personal information, what he observed, what happened on January six. So it appears to me that that he's waved certainly his claim of of a Fifth Amendment privilege by the documents that he's

disclosed in the book that that he's published. And uh, and so it's kind of hard to it's, on the one hand, disclose, disclose this, but then say, well, I can't talk about it, because again, I would be incriminating myself if I did. It's just a very inconsistent legal theory that they're advancing, and so therefore I don't think it's going to prevail. And I do think that there's a very high likelihood that he is going to be held in criminal content by the Department of Justice. Thanks

so much for being in the Boomberg Laws Show. Jimmy. That's former federal prosecutor Jimmy Garula, a professor at Notre Dame Law School. And that's different sedition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts. Spotify and at www dot bloomberg dot com. Slash podcast Slash Law, and please join us every weeknight at ten pm Wall Street Time for the Bloomberg Law Show.

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