Barb McQuade explains why DoJ may have let Meadows & Scavino skate

[CousinIT]

ORIGINAL Twitter thread:

Link to tweet

UNROLLED: https://threadreaderapp.com/thread/1532923585337212930.html

DOJ says decision to treat Meadows and Scavino differently from Navarro and Bannon for contempt of Congress is based on “facts and circumstances.” What facts and circumstances could make a difference when flouting a subpoena? Here are some possibilities …

Navarro Indicted as Justice Dept. Opts Not to Charge Meadows and Scavino
The House had recommended contempt charges against all three Trump White House aides over their stonewalling of its Jan. 6 inquiry.
https://www.nytimes.com/2022/06/03/us/politics/peter-navarro-contempt-jan-6.html
1. Unlike Bannon and Navarro, who refused to engage with the Jan 6 Committee at all, Meadows made some effort to comply with his subpoena, producing documents and emails before abruptly stopping. Meh.
2. Second, proving contempt requires showing not just failure to comply with a subpoena, but also willfulness. That means the defendant must KNOW his conduct is illegal. Here, the two sets of men have different situations regarding privilege.
3. Bannon and Navarro’s privilege claims are laughable. Bannon was not even in exec branch at the time. Navarro has already waived any privilege claim by telling his story in a book & media interviews. For some reason, he keeps confessing to @AriMelber.

4. On the other hand, Meadows & Scavino, as Chief of Staff & Deputy, were Trump’s closest advisors. Even if they were wrong about executive privilege, it will be hard to prove to a unanimous jury beyond a reasonable doubt that they KNEW they were wrong. (Though not impossible.)
5. Also, a 1984 DOJ Office of Legal Counsel opinion says executive branch officials who rely on executive privilege should not be charged with contempt of Congress. The goal is to protect and encourage candid communications between a POTUS and advisers.
6. Ironic that Meadows and Scavino benefit from a policy designed to protect the institution of the presidency when they appear to have been scheming to destroy that very institution. But these decisions take the long view. Assuming, of course, the institution continues to exist.
7. There may also be strategic reasons for the different decisions. Criminal charges are used when you believe compliance is not possible or desirable. Bannon and Navarro are such loose cannons that they would make poor witnesses anyway. DOJ is done with them.
8. Criminal prosecution is about holding people accountable for breaking the rules. DOJ seeks to punish Bannon and Navarro to make examples of them to deter others in the future.
9. But if instead you want to induce testimony, it’s better not to use criminal charges. Negotiation and civil lawsuits can be more effective for this purpose. A judge in a civil case can jail a defendant until he testifies. Meadows and Scavino may be in this camp.
10. In addition, DOJ policy says criminal charges should not be filed if there is an adequate alternative remedy. Meadows has a pending civil suit challenging the subpoena that will resolve soon. That case could result in a court order to comply with the subpoena.
11. There may also be strategic reasons to decline charges against Meadows and Scavino. They may be cooperating with DOJ. Seems unlikely in light of their public statements but people often talk tough before personal consequences help them see the light. See Michael Cohen.
12. It may also be that DOJ considers Meadows and Scavino not as witnesses but as targets in a conspiracy to defraud the United States in the lawful transition of presidential power.
13. Charging them now could complicate that conspiracy investigation, in part, because Sixth Amendment rights would attach. Among other things, DOJ could not use informants against them. Eyes on the prize.
14. As unsatisfying as this decision is, I remain confident that DOJ is not simply shrinking from its duty. I hope that Garland’s abundance of caution will make the charges all the more credible if and when they come.
15. There are many reasons to proceed cautiously when investigating a case as serious as Jan 6. But it’s also important to hold accountable anyone who may have conspired to take down our democracy. I take Garland at his word when he says he will pursue anyone “at any level.”
16. In the end, there is no way charge a former president cautiously. At some point, Garland will be asked to be bold. Let’s hope he is up to the challenge.
Also, the world has changed since Garland was last at DOJ. Increased scrutiny means the public expects more explanation than in the past when people simply trusted public officials to do their jobs. Explaining decisions as much as possible is important to public confidence.

[Irish_Dem]

1. Only the fringe will be prosecuted.

The top elite will skate.

[moniss]

20. Sad but true

[Thomas Hurt]

2. I am hoping they passed on the contempt charges because there are felony charges in the wings.

As she points in her list.

[Fiendish Thingy]

3. I know McQuade is a former US Attorney, but experts at DU say contempt is a simple open & shut case

I refer them to #’s 10-13 on McQuade’s list.

[badhair77]

7. I agree. Look to the long run.

I especially like 12 and 13. The committee has a lot of information from Meadows’ texts but I’d really like to see Scavino burn.

[Silent3]

14. Those points don't actually disprove contempt being an open-and-shut case

Those points are all about supposedly good strategic reasons not to pursue an open-and-shut case - they have no bearing on the plain and obvious guilt of contempt, or contempt being difficult to prove.

[kentuck]

4. Also, it may have been done to encourage others to talk...

...if they believed they could escape prosecution.

Meadows is such an important part of this investigation, I cannot see him escaping all charges, unless he has a lot of information to give to the DOJ ?

[Bev54]

5. Well worth the read for everybody who has an opinion on what Garland is doing.

[Me.]

6. Willfullness, Intention Blah Blah Blah

None of us would be given such consideration. You did the crime, now do the time. But the uppers get all kinds of concessions. Did they know it was a crime, did they really mean to do it, was it done willfully or did they do it just fun and so on and so forth

[Fiendish Thingy]

11. Go ahead and post an example of a federal contempt prosecution/conviction that subverted due process

And didn’t follow the guidelines in McQuade’s list.

Show us the proof that the “little people” have been indicted, and more importantly, convicted by a jury, of contempt without meeting the legal requirements DOJ is apparently using in regards to Meadows and Scavino.

[Silent3]

13. Yes, this pisses me off to no end.

It's not that I think motive and intent shouldn't matter. Those factors should always figure into our judicial system, for everyone equally.

In all but the most extreme circumstance (like a person breaking a law because they saw it as the only way to save someone's life, for example), motive and intent should be used to determine the degree punishment that is appropriate -- how big a fine, how long a jail sentence.

Very seldom should motive and intent have any bearing on whether or not you're considered guilty at all.

But the powerful and the privileged have certainly rigged things well so that you practically have to be a fucking mind reader to get win a verdict against them for all kinds of shit they should be thrown behind bars for.

[Hugin]

8. Instead of speculating why don't we let the DOJ explain the reasoning. Like the J6 committee...

Has asked them to do.

Don’t make their mea culpas for them.

[Takket]

9. THis

The statement the Jan 6 committee put out yesterday should dispel any myths that there is some higher behinds the scenes purpose to not prosecuting them. The "well you just don't understand what's going on behind the scenes" argument for Garland holds no water here because the Jan 6 committee SHOULD KNOW something if anyone is going to know something.

I anxiously await DOJ's reply to the committee.

[Fiendish Thingy]

12. Not true. The J6 committee has no access or entitlement to Info on DOJ investigations.

It’s about separation of powers and coequal branches of government.

The comments from committee members are based on their lack of inside information; it is their reactions to the limited information available to the public.

[Hugin]

21. Congress does have the power of oversight on the executive branch.

Oversight means that they are entitled to see and understand the mechanisms of the agencies.

Checks and balances.

The DOJ will be in violation of this Constitutional provision if they don’t provide a clear and timely explanation of their actions in this matter.

[Fiendish Thingy]

29. DOJ does not have to share information about ongoing investigations

You’re completely incorrect about this- congress can call the head of any dept to answer questions, but the dept can choose which questions to answer, and which to politely decline to answer.

The only recourse congress has is 1) cut the department’s funding or 2)impeach the dept head/secretary/AG

Imagine if they were investigating the chairman of the oversight committee…

[Takket]

25. yeah but the Jan 6 committee is taking the lead on this investigation.

and they will making criminal referrals to DOJ based on that investigation, which is being done openly for the benefit of the public. So if DOJ is going to step in and say to Congress that they won't hold them responsible for contempt, they need a damn good reason. Because they are undermining the committee.

[Novara]

10. Did some of you naysayers even READ what McQuade said?

She gives VERY GOOD reasons why this was all handled this way so far.

Why don't you wait and see what happens?

Sheesh.

[chowder66]

24. +1

[highplainsdem]

15. I hope she's right in that 12th tweet.

[czarjak]

16. Peter proceeded pleasingly to me.

[Trailrider1951]

17. Re: #1, Quote:

"1. Unlike Bannon and Navarro, who refused to engage with the Jan 6 Committee at all, Meadows made some effort to comply with his subpoena, producing documents and emails before abruptly stopping. Meh."

I think Meadows made a deal, that's why he abruptly stopped cooperating. Abruptly stopped cooperating AFTER he gave them all that data.

&t=591s

"Stopped cooperating" sounds like a cover story. Meadows must be very scared of that gang of murderous thugs.

[ymetca]

18. Gosh

I hope this explanation will finally make people understand the complexities and nuances of our hallowed legal processes...

... and how they'll never indict the guy who incited all the violence.

If the situation were reversed, the GOP would have had half of Congress in jail by now.

And folks wonder why Biden's approval ratings are so low.

[Hortensis]

19. Thank you, CousinIT! We're in a canceled subscription phase,

so Ms. McQuade's contribution to the discussion is much appreciated. Bet she, and some of those who choose not to mention any of this, could easily knock out 5000 words of additional information for each point raised.

[moniss]

22. I remember

how we all counted on Fitzgerald and then Mueller. Not a one of them even had the guts to stand up to the big guys in the end. I don't expect to see DOJ do much follow through with the info the 1/6 hearings show. Probably be some strong words about "taking a serious look" etc. just to do a CYA routine. Nothing so far has shown me any reason to feel this will be different than the other "scandals".

[kairos12]

26. All reports have Meadows at the intersection of insurrection attempts.

He walks.

Well at least we got the guy in the horns with the spear.

[jcgoldie]

27. Garland Mueller

Establishment guys. They realize the rot is too deep and they cant dig it out without collapsing the whole house of cards. So they nibble a little and go home.