Criminal references from former Trump officials pose thorny questions for DOJ



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Tough decisions are piling up at the Department of Justice (DOJ), which is now considering three criminal referrals from Congress against former Trump White House officials.

The referrals pose thorny legal issues for a department that has historically defended the testimony immunity of senior officials in the face of congressional subpoenas.

This week the House voted to scorn Peter Navarro and Dan Scavino for defying the committee’s Jan. 6 subpoenas as the panel grows increasingly frustrated in the nearly four months since it approved a referral for the former chief of staff. of the White House, Mark. grazing.

When the House voted last year to refer Steve Bannon to the DOJ for defying another subpoena from a select commission, federal prosecutors were quick to bring criminal contempt of Congressional charges against Trump confidant and a former White House strategist. House.

But the references involving Meadows, Navarro and Scavino could pose more serious considerations for the Justice Department, as their subpoenas relate to their work as White House officials.

Neil Eggleston, a former White House adviser and congressional investigator for the House’s Iran-Contra investigation, said the remaining cases are more difficult than Bannon’s, who was well outside the White House at the time.

“For people who were senior White House officials at the time, there’s another layer of complexity that doesn’t apply to a Bannon,” he said.

The DOJ has argued in the past for shielding such officials from congressional investigations, taking legal positions that the legislature has no ability to coerce testimonials from presidential advisers.

“For a few decades now, we’ve seen DOJ express this kind of absolutist stance that close advisers to the president are absolutely immune to subpoena by Congress,” said David Janovsky, an analyst with the impartial Project on Government Oversight.

“And it’s worth noting that DOJ basically invented this out of all the stuff, and it’s certainly not something Congress agrees with, and it’s not really something that any of the judges who’ve had the opportunity to go to this argument, agree with either one. . So they’re basically on their own, but that’s the line they’ve taken in the past.”

The growing pile of references to criminal contempt for Trump White House officials is now forcing the department to balance its institutional interest in preserving executive branch prerogatives and the Biden administration’s support of it. investigation by the select committee.

While Congress has the power to issue subpoenas and the courts have recognized the legal weight of those demands, the legislature has limited ability to ensure they are enforced.

When someone resists a subpoena from Congress, Congress will usually either file a civil suit asking the courts to enforce it, or despise the target of the subpoena, making it a criminal case for the Justice Department to prosecute.

Bannon, who declined to provide documents or testimony, faces two contempt charges, each with the risk of a year in prison and up to $100,000 in fines.

Under federal statutes, the DOJ has a “duty” to file contempt after receiving a criminal referral from Congress, but prosecutors have in the past refused to act on the legislature’s referrals.

Amid their frustration at the DOJ’s lack of action, some House select committee members have called the department in, arguing that failure by the administration to follow through on the referral will undermine the panel’s authority and ability to account on Jan. 6.

“The Justice Department has a duty to act on this referral and others we have sent,” said Rep. Adam Schiff (D-Calif.) last month when the select committee voted to send the referrals to Navarro and Scavino to the House. †

“Without enforcement of Congressional subpoenas, there is no oversight, and without oversight, no responsibility—for the former president, or any other president, past, present, or future. Without the enforcement of its lawful process, Congress ceases to be an equal branch of government, and the balance of power would be forever altered, to the lasting harm of the American people.”

Attorney General Merrick Garland has declined to provide any hint as to how the department might proceed with the Meadows reference.

“We will follow the facts and the law wherever they lead. We will not comment further on investigations,” Garland said at a news conference this week.

The Jan. 6 committee sought out Scavino, Trump’s deputy chief of staff for communications, after spending significant time with the president on Jan. 6 and helping to promote the rally.

Navarro, a former trade adviser to Trump, has since revealed in his book that he was involved in plans to delay certification of the presidential election. He also wrote a three-part series on his website promoting Trump’s false claims of widespread voter fraud.

Neither man showed up for a planned impeachment or provided any documents.

Eggelston said the DOJ will carefully read the advice of its Office of Legal Counsel (OLC), which has written memos to the department’s attorneys stating that current White House officials are not required to sit for congressional committee interviews.

“OLC opinions do not bind courts, but they do bind the Justice Department,” he said.

But Eggelston said Navarro could present an easier case for the Justice Department, as his involvement in Trump’s efforts to remain in office was well beyond the scope of his executive duties.

‘Navarro is not consulted on economic matters. He has been consulted about the rally and the uprising. And so I think there’s a pretty strong argument that none of those doctrines apply,” he said.

The Biden administration has largely supported the select committee’s investigation thus far, waiving the executive’s prerogative over records and officials and siding with the panel in court on several legal challenges.

Janovsky said the urgency behind the select committee’s investigation should compel the DOJ to continue with the criminal referrals, even if it isn’t ready to completely relinquish its previous positions in executive authority in the face of oversight by the government. Congress.

“Basically, we must remember that Congress is investigating an insurgency and making an effort to prevent the transfer of power,” Janovsky said. “Any step that makes it more difficult for Congress to conduct this investigation is harmful. It’s hard to imagine a more serious topic of congressional research and they need every means available, including punishing people who won’t cooperate.”

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