House contempt vote holds Mark Meadows accountable for what he knew on Jan. 6
Mark Meadows’ stonewalling looks increasingly like a transparent effort at delay. The Jan. 6 committee has called his bluff.
Mark Meadows is sinking in quicksand.
The House Select Committee investigating the Jan. 6 insurrection has issued a 51-page report laying the groundwork for holding the former Trump White House chief of staff in contempt for refusing to appear to answer questions.
Please reconsider, his experienced lawyer, George Terwilliger, in effect asked the committee on Monday. “It would ill-serve the country to rush to judgment on the matter,” he plead by letter. “I respectfully ask your indulgence to explain.”
It was not the kind of letter a lawyer on firm ground sends. If the committee’s report were not rock solid, Meadows would simply wait for the careful Attorney General Merrick Garland to decline to prosecute.
Hours after receiving the letter, the committee voted to refer Meadows for prosecution. And late Tuesday night, the House of Representatives voted to hold Meadows in contempt.
Back in November, Meadows began cooperating with the committee.
He handed over thousands of subpoenaed documents, veins of gold among them. For example, a Jan. 5 email told the recipient, whose identity is unclear, that the National Guard was on standby to “protect pro-Trump people,” according to the panel.
The committee has questions about the three-hour delay between the Capitol Police's urgent request for Guard support and their arrival at the Capitol, which had been overrun by pro-Trump storm troopers.
Hair-raising texts
On Monday, Jan. 6 committee member Liz Cheney, R-Wyo., read aloud hair-raising texts from Jan. 6 that Meadows had supplied the committee.
They demonstrate the alarm with which even staunch Trump supporters like Fox News hosts Sean Hannity and Laura Ingraham viewed the violent insurrection, along with Republican congressional representatives.
While the Capitol attack was happening, one lawmaker texted, “The president needs to stop this ASAP.” Wrote another, “It is really bad up here.” Hannity urged Meadows to “ask people to leave the Capitol.”
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Then there was a PowerPoint presentation Meadows gave the committee. It described strategies for overturning the election, including “declaring a national security emergency and seizing paper ballots,” according to The Washington Post.
Former Army Col. Phil Waldron, who was working with Trump’s lawyers, apparently circulated the PowerPoint. Waldron reportedly met with White House personnel multiple times. While Meadows held a copy of the presentation, there are no reported emails from him telling Waldron to stop the insurrectionist talk.
Also among House-released Meadows’ documents was a text from Donald Trump Jr., indicating that Meadows was “pushing hard” after the violent insurrection started for Trump to issue a statement to “condemn this s---.”
Understanding the Fifth Amendment
In Terwilliger’s Monday letter to the committee, he called contempt inappropriate given Meadows’ “testimonial immunity.” That is a lawyer euphemism for his 5th Amendment right not to provide answers that might tend to incriminate him.
Meadows’ lawyer avoided those words, which could invite the public to think that by invoking 5th Amendment rights, he was admitting guilt. Recall President Donald Trump’s 2017 query, “If you're innocent, why are you taking the 5th Amendment?”
This former prosecutor honors 5th Amendment rights – so long as they are invoked in good faith and not to evade questions where it has no bearing. History reminds us that in the 1950s, Wisconsin Republican Sen. Joseph McCarthy unleashed red baiting against public figures and private citizens alike. Many invoked the 5th Amendment.
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With McCarthy’s anticommunist crusade running amok, even the innocent justifiably feared they would end up as criminal defendants. The right to remain silent spared them the duty to assist in any wrongful arrest and trial.
The Select Committee’s Sunday report contains evidence showing that Meadows was likely up to his ears in trying to arrange to overturn the election. That could potentially subject him to multiple criminal charges, including seditious conspiracy.
Still, the 5th Amendment confers no blanket “testimonial immunity.” The right must be asserted question by question. One cannot simply refuse to show up.
The committee surely has questions whose answers would not incriminate Meadows, for example about his efforts to get Trump to try to stop the mob violence earlier than he did.
Meadows also produced texts expressing his skepticism about Trump lawyer Sidney Powell’s wild claims that voting machines were manipulated. Meadows should be able to answer some questions about those texts.
Meadows has also claimed "executive privilege" as a reason not to appear. Again, the law requires him to attend his deposition and answer questions that he can. If, for example, he met with ex-Col. Waldron without Trump present, executive privilege would not protect him from the committee’s queries. Nor would it help him avoid answering questions about texts to the “Stop the Steal” rally organizers. Importantly, the DC Circuit Court of Appeals rejected Trump’s executive privilege claims as to his attempt to keep his White House documents from the Select Committee.
The court ruled that the incumbent president’s decision not to assert the privilege prevails over the ex-president’s claim. Meadows’ executive privilege claim rests on Trump’s, and the court is saying he has none.
Nonetheless, until the Supreme Court decides whether to overturn the appeals court’s ruling, a cautious lawyer like Merrick Garland would not base any prosecution of Meadows for contempt on any arguably valid assertion of privilege.
The problem for Meadows is, he is refusing to show up. Tossing that contemptuous tomato at the committee puts him in a stew nearly identical to that of Steve Bannon, whom the Justice Department indicted for contempt last month.
This is why Meadows’ lawyer wrote a letter more or less begging for mercy. Meadows’ stonewalling looks increasingly like a transparent effort at delay. The committee has called his bluff.
Look for him to change his mind, appear and assert his claims not to answer questions one at a time. That’s his lifeline out of quicksand.
Dennis Aftergut is a former federal prosecutor in San Francisco.