Former White House chief of staff Mark Meadows sued Nancy Pelosi and members of the Jan. 6 committee on Wednesday for allegedly violating his rights by subpoenaing him to appear for a deposition.
Meadows’ claim that the committee is trying to compel him to violate executive privilege is frivolous on its face for one notable reason. That is: He has already handed over documents to the committee that he himself recognizes do not violate any privilege. This is what the committee says it wants to question him about and he has in essence conceded that he’d be permitted to discuss the contents of those documents in a deposition.
Another of his main arguments, though, is notable. Meadows claims that the committee is a witch hunt because its chairman, Bennie Thompson, said that sometimes people who plead the Fifth Amendment are “part and parcel guilty to what occurred.”
This suggests that Meadows is considering pleading the Fifth Amendment. If so, he would join former Department of Justice official Jeffrey Clark and Trump-advising attorney John Eastman, who have both stated that they intend to assert their Constitutional right not to be compelled to testify against themselves.
It’s unclear whether Clark and Eastman, who were both reportedly scheduled to appear before the committee in the past week, have shown up yet to formally plead the Fifth. (Staff for multiple committee members did not offer comment.) But it’s clear that, possible claims of executive privilege and attorney-client privilege aside, the Fifth Amendment has become a real roadblock to the committee’s efforts to expose the scope of the Jan. 6 attack on the Capitol and the extent to which members of our own government might have helped foment insurrection.
There is a relatively simple way around that particular obstacle, though. This path forward may be both controversial and risky, but could actually compel these recalcitrant witnesses to testify: offer them immunity.
In this way, the Jan. 6 committee would replay one of the central sagas of the Iran-Contra investigations: the question of whether or not to grant immunity to compel cooperation from witnesses with critical information who are asserting their Fifth Amendment rights. The Iran-Contra committees granted Oliver North and John Poindexter what’s known as limited immunity as part of its 1980s investigation into an illegal White House arms-for-hostages deal, which protected them from having their testimony used in any criminal proceeding.
This time around, though, deciding whether to offer immunity is an easier question: Unless Attorney General Merrick Garland is actively investigating Trump’s inner circle for crimes related to Jan. 6—and there’s no indication that he is—there’s little reason not to grant immunity to compel testimony from those who likely have insider knowledge like Eastman, Clark, and possibly Meadows.
The only outstanding question is whether or not any of these men could face actual criminal accountability if Congress were to decline a grant of immunity, at which point granting immunity might be a mistake.
“These are very, very difficult questions, ” said former Rep. Lee Hamilton, who was the chairman of the Iran-Contra committee on the House side. “If you give someone immunity it means, in effect, you’re weakening the accountability, [which] is an essential ingredient in the processes of any representative democracy.”
In the North and Poindexter cases, Hamilton and his committee—along with a Senate committee working in tandem—ultimately decided to give those two top figures immunity in order to compel testimony about President Ronald Reagan’s possible involvement in the arms deal. But the move backfired when the D.C. Circuit Court of Appeals overturned later convictions for the two men, saying that the witness pool was tainted by the spectacle of the high-profile Congressional hearings.
“You don’t like to let people get off the hook and that’s what you’re doing when you grant someone immunity, you let them off the hook,” the 90-year-old Hamilton told me. “They get away with not being accountable for their actions.”
In the Jan. 6 case, though, the stakes and details are very different. Critically, at the time of the Iran-Contra hearings there was an active criminal investigation of the witnesses in question by a special prosecutor, Lawrence Walsh. At the time, Walsh actually pleaded with the committee not to grant immunity.
“Judge Walsh was active and actively opposing what we were doing,” said W. Neil Eggleston, former Obama White House Counsel and deputy chief counsel to Hamilton’s Iran-Contra committee. But with respect to Jan. 6, “there’s no indication, as far as I know, that there’s any criminal investigation going on,” Eggleston added.
The Iran-Contra criminal investigation, by contrast, was in an advanced stage when the grant of immunity was offered.
“By the time the summer of 1987, Judge Walsh had been investigating, and his office had been investigating, for six months, and they had probable cause and much more and were heading towards indicting North and Poindexter,” said John Q. Barrett, the Cardozo Professor of Law at St. John’s University who was an associate counsel in Walsh’s office during the trials of the two men.
Indeed, at the moment, there’s obviously no special counsel investigating Trump-world involvement on Jan. 6. There’s also been no indication that Merrick Garland’s Department of Justice has opened any investigation.
“It seems quite unlikely that there’s an active criminal investigation that we wouldn’t know anything about,” said Eggleston. “If there’s an active investigation into President Trump and people close to him, those tend not to stay quiet.”
Eggleston added “I think there should be an active criminal investigation by the Department of Justice,” but if there isn’t—as appears to be the case—then it cuts towards granting immunity.
Either way, the committee is obligated by statute to let the Department of Justice know if it intends to grant immunity to any potential criminal targets and give the Attorney General the chance to make the case against the grant of immunity. So, if immunity is on the table, it could open the door to more clarity on Garland’s intentions on investigating some of the White House ringleaders of the efforts to overturn the election that culminated in the attack on the Capitol.
One other potential complication is the possibility for a special grand jury in Fulton County, Georgia to investigate Trump’s efforts to overturn the election in that state and whether or not District Attorney Fani Willis’s ongoing investigation could produce indictments against potential Jan. 6 witnesses. As Eggleston notes, the solution, though, would be for the Jan. 6 committee to inform Willis about any possible immunity plans and clarify whether or not it would interfere with her probe.
One option that seems like the worst-case scenario: These potential witnesses don’t face any accountability from prosecutors, nor are they compelled to reveal to the public the full truth around their involvement in the events of Jan. 6.
Over the coming weeks and months, it will be up to the Jan. 6 committee to ensure that does not happen.