The Department of Justice said the Jan. 6 committee has met the requirements to subpoena former White House chief of staff Mark Meadows, laying down a new precedent for how much protection former presidential advisers have after they leave office.
Meadows had attempted to claim he was exempt from complying with the committee’s subpoena, arguing it would conflict with former President Donald Trump’s power to invoke executive privilege over conversations he had with Meadows and other advisers.
On Friday night, the DOJ determined that the stakes around executive privilege are lessened, though not removed, after a president leaves office.
“When a congressional committee demands testimony from an immediate presidential adviser after the President’s term of office has ended, the relevant constitutional concerns are lessened. Accordingly, the Department does not believe that the absolute testimonial immunity applicable to such an adviser continues after the President leaves office. But the constitutional concerns continue to have force,” the department wrote.
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Meadows has insisted that because Trump told him to “invoke any immunities and privileges” he might have, he did not have to comply with the committee’s subpoena. Last month, the DOJ declined to indict Meadows for his refusal to comply, angering some members of the committee.
However, following the DOJ’s submission on Friday, it is unclear how much longer Meadows can refuse to cooperate with the subpoena.
Friday’s submission dealt with the extensive arguments favoring Meadows’s original argument that the president and his advisers should be shielded from campaigns by Congress to force them to testify about their duties.
However, after noting that “presidential administrations of both parties have consistently taken the view that a sitting President’s immediate advisers — current and former — cannot be compelled to testify before Congress about their official duties,” the DOJ noted that it did not have to answer that question directly because neither Meadows nor Trump are still in office.
Simply leaving office doesn’t open up former presidents and their advisers to an onslaught of forced testimony, the DOJ said, noting, “Congress could perhaps use the threat of a post-Presidency pile-on to try and influence the President’s conduct while in office.”
“Or a house of Congress could employ its investigative powers to interrogate or embarrass immediate advisers to a former President to attack the former President solely for partisan gain,” the DOJ added.
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The high bar to compel current or former presidential advisers can be overcome if Congress can show that it is incapable of learning the information it is seeking from another source, the DOJ wrote.
In Meadows’s case, the DOJ pointed to testimony from his former top aide Cassidy Hutchinson. Because the committee “narrowed its original request to [Meadows] in response to information it required elsewhere” and learned from Hutchinson’s testimony that there is information Meadows has that she couldn’t provide, it determined the committee “has sufficiently shown that the information is seeks from [Meadows] is not reasonably available from other sources.”
