Before a surgeon begins a major operation, it’s necessary that they have knowledge and a plan. It’s not unreasonable for them to examine X-rays, carefully read through the patient’s chart, and revisit the literature concerning past cases. However, there definitely becomes a point where this review becomes more harmful than helpful. After all, surgeons are expected to come to the case with considerable advance knowledge. That’s what all that medical school, training, and previous experience is about.
On September 24, the House Select Committee on January 6 issued a subpeona to former Donald Trump campaign official and adviser Steve Bannon. After weeks of public refusals, during which Bannon derided Congress to the media and in his podcast, the committee voted to hold Bannon in contempt for his failure to appear. On October 21, the full House voted 229-202 to to hold Bannon in criminal contempt of Congress. A referral was immediately sent to the Department of Justice.
In the 22 days that have passed since then, spokespeople for the Department of Justice and Attorney General Merrick Garland have refused to make any comment beyond calling this “a criminal matter” which the department will “evaluate in the normal way we do facts in the law, by applying the principles of prosecution."
What does that mean? And will Garland still be studying his notes when the patient is a corpse?
Donald Trump has been party to over 3,000 lawsuits. He has long experience in using a collection of staff attorneys and deep pockets to keep unpaid contractors, hoodwinked purchasers, and angry investors at bay. In case after case, Trump has been able to simply outlast his opponents, forcing them to settle for pennies on the dollar, or nothing at all.
When it comes to battling the government, Trump isn’t able to play the game of bankrupting his opponent through an endless stream of hearings and appeals. That’s why Trump was forced to pay up when it came to charges of money laundering at his casinos, why he had to pay $20 million to get out from under the Trump University scandal, and why the Trump Foundation was ignominiously rolled up in a settlement that required Trump’s kids to go to mandatory training on ethics (spoiler alert: it didn’t work).
However, in his battles with Congress, Trump is definitely aware that they have another constraint that’s far more precious than money: time. In the best of situations, Congress still has only a few months to get through a serious investigation before it’s deeply mired in the next election cycle. In fact, the frequent flips that take place in control of Congress means that every other January brings a hard stop to any project, and in reality the deadline on any significant progress comes way before that.
On both of his impeachments, and on a well-nigh infinite series of scandals in between, Trump simply went to a four-corner offense when it came to dealing with Congress. Officials weren’t just told to claim executive privilege over items that were the subject of immediate investigation, they were instructed to insist they couldn’t talk about things that might be the subject of future investigations. It wasn’t the first time this kind of pre-privilege was claimed, but Trump took it to a ridiculous degree, refusing to cooperate in even the most clear-cut instances of congressional oversight, confident in his ability to keep any legal issue bouncing around the courts until well after it expired.
Earlier this month, Vanity Fair made clear the danger represented by Garland’s long, and getting longer, delay in acting on the charge against Bannon. Without the threat of contempt charges, the investigation into Jan. 6 is likely to be “stonewalled like so many before it.”
That article is generally upbeat, indicating that “Bannon’s antics aside, Trump figures have largely cooperated with the investigation.” But that cooperation doesn’t seem to include any of the major figures. It’s not just Bannon, it’s Mark Meadows, it’s Rudy Giuliani, it’s Michael Flynn, it’s Trump. Of the people who attended the infamous Jan.5 meeting to plan for the following day’s events, it’s not clear that any have exchanged one word with the committee. As the Vanity Fair article admits, congressional subpoenas “only have teeth if the Garland DOJ proves willing to enforce them.”
Meanwhile, at CNN, one analyst warned that “Holding Bannon in criminal contempt through a prosecution could take years, and historically, criminal contempt cases have been derailed by appeals and acquittals.” Even so, another legal analyst stated that “If Merrick Garland does not prosecute Steve Bannon, all these other witnesses ... are going to see it as a free-for-all to do what they will.”
LawfareBlog, has a far different take on Garland’s position than most. Calling the question before the DOJ “complicated” and “nuanced,” Jonathan Shaub and Benjamin Wittes have written what they call a “kind of guide to the situation” that summarizes the challenges Garland faces, breaking it down in terms of the executive privilege claims.
On the face of it, these claims seem downright ludicrous:
- Trump is not the sitting president.
- Bannon was not even a member of the executive branch.
- Privilege can’t excuse a witness from appearing.
They look at the Nixon v. General Services case, which has been widely seen as showing that the Presidential Recordings and Materials Preservation Act sets the rules and past executives have no authority, and see that the ruling there shows that past presidents can still “assert” executive privilege, even though Nixon lost.
As to whether the privilege can extend to private individuals, they show that the Justice Department during the Bush administration argued that “individuals outside the executive branch” who Bush talked to previous to a purge of U.S. attorneys, were protected, though the acting attorney general at the time offered no precedent for this opinion.
And when it comes to simply showing up, the Office of Legal Counsel under William Barr issued an opinion that “a close presidential adviser does not need to show up in response to a congressional subpoena because such advisers are immune from compelled congressional testimony.”
Put that all together, and you get — considering that Nixon claimed he could still assert executive privilege, and that Bush’s attorney general claimed privilege extended to private individuals, and given that Barr claimed advisors didn’t even have to show up … this is a tricky decision for Garland.
However, there is nothing in either the acting AG statement under Bush or the OLC statement under Trump that requires Garland to fall in line. There’s a history of providing respect to past claims by the DOJ, and reversing past decisions is certain to generate challenges in court. However, these are not claims the DOJ should be seeking to preserve. These were bad moves, defending bad actions, and the Justice Department should not feel any compulsion about acting now to dispute them. If it does not, then it is serving to underline these claims as a defense against future congressional action—which would have a detrimental effect going far beyond the current case.
The stated purpose of the House Select Committee is perfectly aligned with the documents and testimony it seeks. No court, anywhere, is going to rule that this request is outside the purview of the committee. Nixon asserted privilege, Nixon lost. There’s nothing to see on the “right to assert” grounds.
But the biggest reason that the “complicated” and “nuanced” argument is bullshit is the same one that makes it critical — time.
The clock on this issue didn’t start when the House passed it off to the Justice Department on October 21. It didn’t even start when the Select Committee issued a subpoena to Bannon and three others on September 24. That the members of Trump’s inner circle would try to avoid testifying before this committee or any such body was obvious from the outset, The arguments that Bannon is using now, are the same arguments that Trump associates used again and again in undercutting past subpoenas, most of which were not pursued out of knowledge that Barr’s DOJ would not support them. In fact, Barr was one of those who cited for contempt of Congress.
Merrick Garland should have been preparing for this decision every moment since he took went through the doors of the Justice Department, if not sooner. That it was coming was absolutely clear, and where it would be fought was equally clear, and the idea that somehow he and the rest of the DOJ had to sit on their thumbs until the paperwork landed on their desk is just ridiculous.
The question isn’t why it’s taken three weeks for the DOJ to respond. The question is why did it take more than three minutes. Whatever concerns they had about these issues, should have been argued out well before now.
I completely agree that the Justice Department should review those precedents. It should come to a careful decision. But the time to do that was before the subpoena landed on Garland’s desk, not after.
Pretending that this is a novel and unexpected problem that only now deserves precious weeks in a very brief window remaining to act against those who attempted to overthrow the election is absurd and unacceptable. If Garland seriously did not prepare for this decision in advance, he genuinely does not deserve to continue in his role.
And if he did prepare … what the hell is he doing now?
Naturally, I had no more finished this than …
The need to empanel a federal grand jury might also explain where a lot of the time went that uninformed fools like the author of this article complained about.
Attorney General Merrick Garland has issued a statement:
“Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law, Today's charges reflect the department's steadfast commitment to these principles."
Special note: Don’t worry about taking up a collection to make me eat crow. I’m funding that event myself.
And now I’m going to start my post on why it’s ridiculous that they’ve taken this long to arrest Trump.