DON'T SELL MERRICK GARLAND SHORT--YET

The House committee investigating the January 6 insurrection has issued scores of subpoenas. The most recent count was 86, and that doesn't include "requests" to appear.

It has not been easy going. Hard-right Trumpers have done all they could to obstruct the inquiry. First, the Republican caucus rejected a nonpartisan inquiry. When two Republican members agreed to serve on the committee appointed by the Democratic leadership, Republicans were outraged and in one instance, representative Liz Cheney was stripped of her position in the House Republican leadership and thrown out of Republican party by her state committee.

But the House committee soldiers on. Four witnesses have been held in contempt by the entire House, and have been referred to the Department of Justice for prosecution. The first was Stephen Bannon (who, incidentally, avoided an indictment for fraud in connection with a phony wall-building scheme by reason of a Trump pardon. His co-conspirators have since pleaded guilty). Bannon was subpoenaed in October 2021 and flat out refused to produce subpoenaed documents and appear for a deposition. He was promptly found in contempt by the entire House and the matter was referred to the Department of Justice in November. The DOJ procured a grand jury indictment in December, and Bannon’s trial is scheduled for July 2022.

Next in line was Donald Trump's Chief of Staff, Mark Meadows. Meadows too refused full compliance with the committee's subpoena and was found in contempt by the House of Representatives in December, 2021 and the matter was referred to the Department of Justice for prosecution. But unless I am grossly misreading the calendar, we are now approaching the end of April, and the Department of Justice has not acted on that House referral. Four or five months to decide whether to indict Meadows for contempt? There would appear to be no question about the fact that he was duly subpoenaed and that he refused fully to comply. What's taking Merrick Garland so long? Why act so promptly with Bannon and then drag his feet with Meadows who, as Chief of Staff to then-President Trump, probably knows a lot more about the details of the planning for the insurrection than Steve Bannon does.

Methinks the explanation is not that Merrick Garland is lazy or stupid. I suggest that recent disclosures have made it clear that Mark Meadows' criminal exposure goes well beyond a misdemeanor count of contempt of Congress. The latest revelations indicate that Meadows was at the core of the effort to trash the Constitution, reverse the will of the electorate, and keep Trump in the White House, the voters be damned. It now appears that Meadows likely conspired with members of the "Freedom Caucus,” to obstruct the Constitutional process. The evidence suggests that, from his position in the White House, he had communications about overturning the election with the likes of Jim Jordan, Rick Perry, Marjorie Taylor Greene, Lauren Boebert, Chuck Grassley, and a handful of other Republican legislators. In short, Meadows may be facing a raft of felony charges for conspiracy and sedition, and the five-month delay in acting on the contempt referral may very well be because Garland has something substantially larger in store for Mr. Meadows. And it would not surprise me to learn that Meadows' lawyers are discussing the matter with prosecutors.

From Garland’s point of view, there is no rush to bring the contempt indictment. Those who have suggested the opportunity to prosecute for contempt of Congress might evaporate upon the election of a Republican majority in the House of Representatives, are wrong.  I have no doubt that a Republican majority would likely dismiss the January 6 committee, and withdraw or otherwise trash any report it renders. But a Republican majority can do nothing to vitiate Meadows’ (or anyone else's, for that matter) criminal liability for conduct preceding the change of power. The law is clear that the crime of contempt is complete upon the contemptuous conduct, and no subsequent change of legislative power alters that conclusion. In other words, a 2023 Republican House could not "decriminalize" Meadows’ 2022 contempt (or any other crime). That means the current Department of Justice has at least until January 19, 2025, to procure grand jury indictments against Meadows et al. with respect to the January 6 insurrection. (But of course a new AG appointed on January 20, 2025 could dismiss the prosecution.)

Bottom line, it's too early to sell Merrick Garland short. The bad guys will get their due no matter what happens in the forthcoming November elections, but Garland had better get cracking no matter what.

A bientot.

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