Jurisprudence

Merrick Garland Is About to Face His Most Important Test

Garland stone-faced with headphones on listening to a translation.
Merrick Garland at a conference in Mexico City on Friday. Hector Vivas/Getty Images

Former Trump White House aide Dan Scavino is one of a number of former Trump officials and confidantes who, along with the planners of the Jan. 6 rally, are facing October deadlines to turn information about the insurrection over to Congress and appear for depositions. On Tuesday, CNN reported that Scavino was hiding from a subpoena by the House select committee, perhaps partly because former President Donald Trump told him to.

Scavino, former White House chief of staff Mark Meadows, former acting Defense Secretary chief of staff Kashyap Patel, and former Trump adviser Stephen Bannon had until Thursday to turn over documents (they probably didn’t) and until next week to appear before the committee (they probably won’t). Given that the committee literally cannot find Scavino to formally serve him with the subpoena, and Trump’s own stated desire to thwart the probe, it seems possible that Trump’s coterie will attempt to simply flout the congressional subpoenas outright, as Trump loyalists regularly did during his time in office. Such a path of hiding from subpoenas or refusing to show up for depositions is clearly a crime, but it never stopped Trump’s circle before.

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Something is different this time, though: While the Trump Justice Department would never prosecute a Trump subordinate for violating congressional subpoenas while Trump was in office, Trump is no longer in office. That means that it will be up to the Biden administration to decide whether or not to criminally prosecute any Trump loyalist who decides to break the law and disobey a congressional subpoena, either by not appearing or by refusing to answer questions within the scope of the inquiry that are not covered by relevant privilege.

It seems clear that the Biden DOJ needs to take firmer action here, for the good of the country and for the legitimacy of the rule of law. The Department of Justice must ensure that Congress is able to properly investigate and legislate responses to a violent assault on its members, its police officers, and the very seat of American democracy itself. If Scavino and others don’t reply to the subpoenas, Attorney General Merrick Garland cannot merely let it go and say, “Oh, well.” Instead, he should prosecute any criminal referrals he receives from the select committee against those in contempt of Congress. The deadline for Garland to act could be coming very soon: Patel and Bannon have been ordered to appear on Thursday, and Meadows and Scavino have been ordered to appear the day after.

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The select committee in the House is already prepared to push this onto Garland. Republican committee member Adam Kinzinger, for instance, told CNN that his committee will make such referrals if it has to. Meanwhile, select committee Chairman Bennie Thompson, a Democrat from Mississippi, confirmed last week, “We’ll do criminal referrals and let that process work out,” for witnesses who refuse to testify.

How that process works out is indeed up to Garland. He will likely have to decide whether or not to prosecute Trump allies for the obvious and ongoing crime of refusing to comply with lawful subpoenas. Under U.S. Code § 192, that would be a misdemeanor violation coming with a possible punishment of $100,000 or one year in prison. While the law hasn’t been successfully used in decades and has a complex history when it comes to confrontations between the executive branch and legislative branch, it was once regularly used to enforce subpoenas of witnesses not employed by the executive branch, which none of these witnesses currently is.

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Whether and how quickly these witnesses might be forced to contend with an actual criminal contempt prosecution will depend on the depth of their obstruction. Experts agree that there are colorable grounds under which some claims of either executive privilege or Fifth Amendment privilege against self-incrimination might apply. It is an open legal question, the extent to which a former president’s comments are protected by executive privilege if the current president does not assert it on his behalf, as Biden has indicated he is unlikely to do in this case. But one thing is clear: Refusing to even appear before the committee to make some privilege claim—or hiding from a subpoena, as appears the case with Scavino—is simply illegal.

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“Any time you are trying to fight a subpoena that covers a variety of subjects, the basic rule is that you don’t get to just not show up,” former federal prosecutor Frank Bowman says. “You have to come in and entertain at least the questions that are being asked and assert relevant privileges in response to particular questions or inquiries. You don’t just get to say, ‘All of this, everything you want to talk about, is barred, and I’m just not going to come.’ ”

The obligation under these subpoenas is to make privilege claims on a case-by-case basis and let those be adjudicated in court if it gets to that point. “If you get subpoenaed, you don’t get to just not show up because you don’t want to show up,” said former deputy attorney general Donald Ayer. “You’ve got to appear and give an answer, and it may be privilege or it may be something else. Letting people thumb their nose at this obligation comes at a very high cost to respect for the law.”

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During the Trump administration, executive branch employees often avoided this kind of thing with no consequences, and there’s good reason the former president might prefer that these witnesses attempt to continue that trend and not show up at all. According to Politico, Trump sent a letter to the group of witnesses that are ordered to testify next week which “directed its recipient to hold back any documents about his White House work and to refuse to testify about his official duties.”

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Which, as previously noted, would likely be illegal: “It may be a good option in some sort of personal or political sense, but it’s not a legal option,” Bowman said. “Just not showing up is not a legal option.”

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Garland, for his part, has been cautious in his responses to Trump-era abuses in an apparent effort to depoliticize the Justice Department following the grossly politicized tenure of William Barr. But this position is a challenging one to maintain given that his department is also tasked with confronting abuses of power, or potentially outright crimes, by Trump and former administration officials.

“Merrick Garland comes in as attorney general into a situation where the Justice Department has been horribly, horribly politicized,” Ayer said. “You could argue his No. 1 job, but not his only job, is to restore trust in the Justice Department.”

Again, it’s not all of his job. “If people are doing things that are grossly wrong and deserve to be held to account for them, how does the attorney general reconcile his competing obligations to deal with that and also avoid appearing political?” Ayer noted. “What does he do?”

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This challenge potentially becomes more difficult because the relevant law—USC § 192—has been moribund for decades. Trump’s actions were perhaps the most brazen, but presidents of both parties have instructed aides to ignore subpoenas without consequence—or ultimately with some negotiated accommodation. As far as I could find in my research, the last successful USC § 192 prosecution came in 1978 after Claude Powell Jr. refused to testify about an alleged offer he received to assassinate Martin Luther King Jr. for money. Powell Jr. pleaded guilty to avoiding the subpoena, was sentenced to one month in prison and to pay a $100 fine, though his prison sentence was ultimately suspended and he was placed on three months probation instead. (Refusing to plead guilty to the crime of contempt would likely mean any prosecution would seek a much harsher punishment.)

Ultimately, there really is no appropriately analogous scenario to the current situation Garland finds himself in. “In my lifetime we’ve never lived through anything remotely similar to what has occurred in the last couple of years, when it comes to people in authority acting willfully to imperil the future functioning of government. That tells you what is at stake,” Ayer said. “It also makes Merrick Garland’s job harder. “

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