UPDATE (12/13/21 8:08 p.m. ET): The House’s Jan. 6 committee voted unanimously Monday to refer Mark Meadows to the Justice Department for contempt of Congress.
The House’s investigation into the Jan. 6 attack on the U.S. Capitol has prompted some surprising behavior from individuals with insider information about attempts to overturn the 2020 presidential election. Some witnesses make decisions one day only to reverse course the next, while others seem to be making choices contrary to their own best interests.
Some witnesses make decisions one day only to reverse course the next, while others seem to be making choices contrary to their own best interests.
Take former President Donald Trump’s former chief of staff Mark Meadows. After originally announcing that he would cooperate with the House committee’s investigation, he abruptly reversed course and failed to appear, in violation of a congressional subpoena. His refusal inarguably constitutes the crime of contempt of Congress.
There are any number of possible reasons for Meadows’ flip-flop. One is that after Meadows just published a book that contained some damaging and embarrassing revelations about Trump, his former boss predictably erupted. Trump’s disapproval could affect Meadows’ book sales with supporters, making appeasement not just a political strategy but a business one.
Or maybe Meadows did not want to be forced to invoke his Fifth Amendment right against self-incrimination. After Meadows failed to appear on Wednesday, the committee disclosed a text message between Meadows and an unidentified member of Congress dated Nov. 6, 2020, three days after Trump lost the election. The text showed the member of Congress suggesting that alternative electors be appointed in what can only be described as a transparently corrupt attempt to deny Joe Biden his rightful win. Meadows’ reply to the undemocratic scheme? “I love it.”
Or maybe Steve Bannon’s contempt of Congress adventures influenced Meadows’ decisions. Interestingly, even coincidently, Meadows first failed to appear before Congress on Nov. 12 — the very same day the grand jury indicted Bannon for his contempt of Congress. Shortly thereafter, Meadows announced he would cooperate. Then, on Dec. 7, Judge Carl Nichols, a Trump appointee, set Bannon’s trial well into the future, scheduled to begin on July 18. Lo and behold, Meadows then refused to testify.
Could it be Meadows decided that even if he gets voted in contempt, referred to DOJ for prosecution, indicted and scheduled for trial, it would be close enough to (or after) the midterm elections that he might find a friendlier congressional audience — assuming Republicans retake control of the House?
Delay must be one of Meadows’ main motivators. Just this week he filed what is almost certainly a losing lawsuit against House Speaker Rep. Nancy Pelosi and the members of the select committee. In the suit, Meadows trots out the same tired, unpersuasive claim of executive privilege that Trump has — unsuccessfully — tried to use. Although there is some case law from the Nixon era suggesting a former president may retain some lingering executive privilege protection, Trump’s argument was rejected on Thursday by the D.C appeals court. That’s bad news for Trump, and anyone who tries a similar defense.
Not to mention the fact that one cannot invoke executive privilege to cover up one’s own crimes or the crimes of the president. And Meadows has revealed much about his conversations and interactions with Trump in his recently published book. The law generally deems that a public disclosure of information waives any legal privilege that information might otherwise enjoy.
Finally, even if Meadows did believe he had a viable privilege to assert, the way to do so is to appear in front of the House, answer all questions that do not include privileged information (or information that has already been revealed in his book or in interviews hawking his book), and then invoke the privilege on any questions that actually seek privileged information. Rather than follow this accepted and lawful path, Meadows just decided to blow off the subpoena altogether, an act imminently worthy of a criminal contempt referral. Meadows isn’t the only one struggling with what course to chart through the congressional contempt waters. Jeffrey Clark, one of Trump’s former DOJ officials who provided election officials in battleground states with a blueprint to overturn the election results, went from saying he will cooperate with the committee to storming out of the committee hearing without announcing his intention to invoke his Fifth Amendment right. John Eastman, the Trump lawyer who wrote a bizarre six-point roadmap to overturn the election’s results, a memo that he himself later described as “crazy,” initially announced he would simply defy any congressional subpoena. Eastman now appears set to also invoke his Fifth Amendment right against self-incrimination. The Bannons, Meadows, Clarks and Eastmans of this shameful national saga seem motivated by everything and anything other than a desire to tell the truth. One thing seems tragically clear: The Bannons, Meadows, Clarks and Eastmans of this shameful national saga seem motivated by everything and anything other than a desire to tell the truth about what they know regarding an unprecedented attack on our U.S. Capitol, our legislators and our democracy. Some witnesses may be making choices based on their personal aversion to spending time in a jail cell. Others may care more about their future professional or employment prospects. Some are perhaps driven by book sales, or a belief that portraying oneself as the victim can drive podcast listens and donations. It all has the air of desperation about it. Luckily, it seems the House select committee remains determined to investigate the insurrection fully and thoroughly. As Rep. Lynn Cheney, the Wyoming Republican and a co-chair of the committee recently announced, “We anticipate next year, we will be conducting multiple weeks of public hearings, setting out for the American people in vivid color exactly what happened, every minute of the day on Jan. 6th, here at the Capitol and at the White House, and what led to the attack.” Here’s hoping that the evasive, disruptive and even criminal conduct of the witnesses does nothing to alter the committee’s path.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
