I: What We Know
There was an interesting series of events this week involving the Justice Department, Peter Navarro, Mark Meadows, Steven Bannon, and Dan Scavino. Here’s the timeline:
On Feb. 9, 2022, the Select Committee Investigating the January 6 insurrection served Navarro with a subpoena. The committee said it had information indicating that he had worked with Steve Bannon and others to develop a plan to delay Congress’s certification of the 2020 election and to ultimately change the outcome of the election.
In his book, Navarro described his plan as the Green Bay Sweep and wrote that it was the “last, best chance to snatch a stolen election from the Democrats’ jaws of deceit.” He also said that Trump was “on board with the strategy as were more than 100 members of Congress.”
On Friday, May 27, he was served with a grand jury subpoena requiring that he furnish all documents “related to” the Select Committee’s subpoena.
The subpoena made clear this included his communications with then-president Trump.
Navarro (and several journalists) interpreted the document request to mean that the grand jury was investigating Navarro’s contempt of Congress charge.
I (and several lawyers I know) think otherwise. Among the lawyers I consulted was Mark Reichel (@reichellaw), an experienced federal defender who also happened to be my mentor a few decades ago when I did a stint in the Sacramento Federal Defender’s office.
We believe that the subpoena was for all the material the committee wanted and anything else”‘related.” (Subpoenas from the government tend to be as broad as possible because they want to sweep up as much evidence as they can get.)
The subpoena asked (but could not require) Navarro not to talk about the subpoena because doing so could harm the ongoing investigation.
Navarro decided to blab. On Tuesday, May 31, he announced that he had been served with this subpoena. He made media appearances and said he was proceeding without a lawyer. (Defense lawyers everywhere = .)
Navarro wrote a completely unhinged lawsuit acting as his own attorney (in pro per,). He sued the committee and the DOJ. He claimed that the DOJ subpoena was derived from the committee subpoena, and the committee subpoena was invalid because the committee is not legal, therefore, he should not have to comply with the grand jury subpoena. (Yes, it was nuts.)
The question between May 31 and June 2 was: Would Peter Navarro comply with the grand jury subpoena or would he blow it off?
(Blowing off grand jury subpoenas is always a terrible idea.)
He appeared on Ari Melber’s show and had a long rant about the charges. Melber warned him that prosecutors were listening (yes, he was incriminating himself!) but went on and on. (More facepalms from defense lawyers.)
June 2: Navarro did not comply with the grand jury subpoena.
On the morning of June 3, in a dramatic event as he was boarding a plane to Nashville, he was arrested. He was handcuffed and taken to a jail cell to await his bail hearing.
I listened to his bail hearing (courts have a call-in number). It was quite a show. His theory was that he was being maliciously prosecuted by the DOJ as a “preemptive strike” against his lawsuit. He told the magistrate that his case should go to the Supreme Court. He rambled on, repeating the bogus and discredited arguments from his lawsuit. He then complained about how he was treated. He was completely horrified that he had been handcuffed and arrested. He said, “This isn’t America.” How dare police officers and the DOJ so mistreat a person like him, who had “served honorably in the White House?” (He said all of this without a touch of irony.)
Then, that evening, we learned from the committee that the DOJ was declining to bring similar charges against Dan Scavino and Mark Meadows.
If you’re keeping score:
Indicted for contempt of Congress for failing to comply with the J6 committee subpoena:
- Steve Bannon
- Peter Navarro
Not indicted for contempt of Congress for failing to comply with the J6 committee subpoena:
- Dan Scavino
- Mark Meadows
II: What We Don’t Know
We don’t know why the DOJ decided to indict Bannon and Navarro for contempt of Congress but not Scavino and Meadows.
Social Media Explodes With Theories About Why The DOJ Declined to Prosecute
Some of these reasons made sense. Some were nonsense.
A. Theories That Make Sense
Barbara McQuade, a law professor at the University of Michigan, suggested this: Unlike Bannon and Navarro, Meadows made some effort to comply with his congressional subpoena, producing documents and emails before stopping. Also, proving contempt requires showing not just a failure to comply but also wilfulness, which means a defendant must know his conduct is illegal. The two sets of men have different situations regarding privilege. Bannon and Navarro’s privilege claims are laughable. Bannon was not even in the executive branch at the time. Navarro has repeatedly waived any privilege claim by telling his story in a book and media interviews. On the other hand, Meadows and Scavino, as chief of staff and deputy, were Trump’s closest advisors. Even if they were wrong, proving to a jury beyond a reasonable doubt that they knew they were wrong would be difficult.
Some have suggested that Meadows and Scavino are cooperating.
It’s worth noting that Navarro and Bannon are completely unhinged and would be terrible witnesses for the prosecution, and moreover, who can believe anything they say? Meadows and Scavino might be more useful.
It’s also possible that Meadows and Scavino have additional criminal liability.
Given the timeline (Navarro was arrested and indicted for contempt of Congress the day after he blew off a grand jury subpoena), it seems to me that there is a direct link between these two events. In other words, when Navarro blew off the grand jury subpoena, the DOJ said, “We’re done with this guy.” Indict him.
Given their past behavior, particularly Meadows, I would think that Scavino and Meadows are most likely complying with grand jury requests, or at least not blowing them off (which is different from entering a formal cooperation agreement with the government). Scavino and Meadows are less crazy and have better lawyers (duh, right? Navarro was representing himself), and probably didn’t act as stupidly as Navarro, and thus may have dodged the humiliation of a public arrest, handcuffs, and a criminal indictment in this particular matter.
B. Nonsense Theories
Nonsense theory #1: Scavino and Meadows were not indicted because Powerful White Men Always Escape Justice and The System is Hopelessly Broken (and now we will all lose “faith”).
I am not joking. This was the going theory on Twitter.
I had a rant about that. If you’re a regular reader, you’ve heard it before. If you are just curious (because, hey, Teri had a rant) or you’re a new subscriber, see this substack post.
Or, if you prefer, Twitter rants perhaps carry more force. You can see my Twitter rant here. (Click and read down. It is more than two tweets)
Note: My blog post is once weekly. I started a substack for more frequent posts that may seem repetitive to regular readers. If you’re new, you might want to check out my substack (always free) until you feel caught up.
I think the problem is how people consume information: They read the headlines and react, or they’re fed rage-inducing content, and they react. There isn’t enough of this = , and democracy requires more and less . But when media is competing for clicks, gets more engagement.
Nonsense theory #2: This totally proves that Merrick Garland is (1) completely incompetent and (2) will never indict Trump.
This theory was expressed by a well-known former prosecutor who makes frequent cable news appearances:
A decision not to prosecute two people with misdemeanors has nothing whatsoever to do with a decision to indict Trump for a particular felony.
Here’s what I hear in that Tweet: “GARLAND IS A WIMP. HE WON’T EVEN CHARGE THESE MISDEMEANORS (even though it’s unlikely that Garland made the decision) BUT IF BIDEN HAD APPOINTED MEEEEEE INSTEAD, I’D BE TOUGH.”
That particular TV pundit also said this:
I knew the above was wrong, but again I turned for confirmation to Mark Reichel (who has a busy defense practice and regularly handles these cases). Mark said this:
His statement is the dumbest thing I’ve seen in a while.
There is no DOJ policy that requires defendants to plead guilty before they cooperate.
[Rick] Singer, from Sacramento, was the main cooperator in the college admissions scandal which rocked the country a few years back. Singer was cooperating for at least a year before he formally went in and pleaded guilty. Singer was represented by someone I know. Anyway, Singer was the top, but he gave them all of the people he conspired with in his cooperation for about a year. Then when they snagged everybody, Singer went in and pled guilty later. That is extremely common.
There is no way to tell from the available evidence whether Scavino and Meadows are cooperating.
Also, regarding that pundit’s comments, the DOJ did not say they will not be indicted “at all,” something they wouldn’t do. They informed Congress that they will not indict for the charge of contempt of Congress. (But that particular TV pundit isn’t too concerned with facts.)
I suspect at some point we will learn why the DOJ indicted Navarro and Bannon but not Scavino and Meadows. Guidelines require that the DOJ tell the referring agency (in this case, the Select Committee) its decision about whether to prosecute and the reasons.
The DOJ did not explain its reasons.
My guess about that is that giving its reasons now will compromise the ongoing investigation, so we’ll all have to wait to find out.
This article was originally published on the author’s website. It has been edited for style.
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