UPDATE: On Friday, June 3, two days after this piece was published, the Department of Justice announced the indictment of former White House advisor Peter Navarro for contempt of Congress and notified Congress that it would not bring contempt charges against former White House Chief of Staff Mark Meadows or presidential advisor Dan Scavino. It is unclear from the text of the indictment whether the Justice Department has abandoned the theory of presidential advisors’ absolute immunity discussed in this article, or if the agency maintains the theory but has found that it did not apply to Navarro. DOJ also has not given its reasons for declining to indict Meadows or Scavino or specified what role OLC’s theory of immunity played in the decision.
The House committee investigating the January 6 insurrection will begin public hearings in June. According to one member, Representative Jamie Raskin (D-MD), the committee will present evidence of “a coup directed by the president against the vice president and against the Congress.” The committee has previously argued in legal filings, and a federal judge has agreed, that former President Donald Trump likely committed at least two federal crimes during his attempt to overturn the 2020 election: corruptly obstructing a session of Congress, and conspiring to defraud the United States. But we’re still guessing about whether the Department of Justice is actively investigating Trump and his inner circle for those or any other crimes.
Attorney General Merrick Garland has repeatedly said that the Justice Department will “follow the facts and the law, wherever they may lead” and that it would be inappropriate to provide any more details to the January 6 committee. Neither the public nor the committee should accept this non-answer any longer.
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When it comes to following the facts, there have been few, if any, signs that the Justice Department is actively investigating Trump or his close advisers for his efforts to overturn the election. The closest indication is reporting by the New York Times that revealed the department wants transcripts of the January 6 committee’s extensive witness interviews, and a single subpoena to a former Trump aide. Given the high level of public interest in a potential criminal probe of the former president, and the frequency with which news of other high-profile investigations leaks, the lack of evidence that a probe is underway is disturbing.
There is no need to rely on leaks, either. The Justice Manual, the department’s official guide for prosecutors, states that the department “generally will not confirm the existence of or otherwise comment about ongoing investigations,” but it also recognizes an exception “when the community needs to be reassured that the appropriate law enforcement agency is investigating a matter.”
That reassurance is sorely needed now. We cannot simply trust in the Justice Department’s willingness to hold a former president accountable. In light of several memos from the department’s Office of Legal Counsel (OLC), there’s reason to fear that department lawyers will decide that some of the insurrection’s key boosters are beyond the reach of the law. The office’s stances on the limits of Congress’s power to investigate White House officials or even to write laws that apply to presidents may be a major obstacle to investigations or prosecutions of Trump and his allies. To make matters worse, OLC routinely hides many of its opinions from the public and Congress.
At minimum, the department needs to tell us whether and how OLC guidance is driving its decision-making process. For example, an OLC opinion is likely a major factor in the Justice Department’s increasingly glaring failure to bring criminal charges against two former White House officials — Mark Meadows and Dan Scavino — who were held in contempt of Congress for refusing to testify to the January 6 committee. As we’ve written before, OLC takes the position that presidential advisers are allowed to ignore congressional subpoenas. No court has endorsed this form of immunity from subpoena, and several federal judges have rejected OLC’s assertion of it, but the office has not publicly withdrawn its opinion. Even if the Justice Department does take the overdue step of retracting its opinion, department prosecutors could decide that if the former officials were relying on OLC advice, that could pose an obstacle to a contempt prosecution.
To be clear, we think that decision would be a mistake: To openly defy a subpoena is to invite a contempt of Congress charge regardless of past OLC opinions. But if the department doesn’t explain itself and declines a prosecution, it would give the impression that the officials did nothing wrong, even if the real problem was that the department essentially put them above the law.
An investigation or prosecution of Trump himself could implicate a different (but equally indefensible) OLC doctrine, which the office came up with in the mid-1990s: The so-called “clear statement rule.” The essence of this “rule” is a claim that if enforcing a law would limit presidential power, the law doesn’t apply to presidents unless Congress explicitly names the president. It’s possible that OLC concluded in 2019 that the law which makes it a crime to obstruct an official proceeding — such as the joint session of Congress to certify the election on January 6 — cannot be applied to the president of the United States under the “clear statement rule.” The Justice Department has repeatedly used that same criminal law, 18 U.S.C. §1512(c)(2), to charge and convict people for their roles in January 6, and it is one of the laws that a federal judge relied on when he concluded that Trump had probably committed a crime.
That statute, 18 U.S.C. §1512(c)(2), also had a starring role in special counsel Robert Mueller’s investigation into his dealings with Russia. We know that when Mueller issued his report, the head of OLC claimed there were problems with Mueller’s conclusion that the statute could apply to Trump for interfering with the investigation. But the Justice Department has refused to release the full memo explaining that conclusion to the public or Congress, and is fighting a court battle against being required to disclose it. Our best guess at its contents comes from a memo William Barr wrote before he became attorney general, which argued that it would be improper and unconstitutional to apply 18 U.S.C §1512(c)(2) to the president.
Without being able to review OLC’s analysis, though, the public can’t know for sure whether it has any bearing in the January 6 context. Does the Justice Department believe the clear statement rule limits the obstruction statute — which it has used to charge hundreds of people for their involvement in January 6 — from being applied to Trump? What other criminal laws does the Justice Department believe cannot be applied to him under the same reasoning? How do they square this opinion with the Supreme Court’s 1997 decision in Clinton v. Jones, which held that the president could be compelled to testify in a civil deposition during his term?
There is no basis in statute, precedent, or the Constitution for exempting the president from criminal laws that apply to every other citizen — particularly for conduct outside of his official duties such as Trump’s attempts to overturn the election. An OLC opinion that attempted to do so would be a thinly disguised version of former President Richard Nixon’s contention that “when the President does it, that means that it is not illegal.” Keeping a potential presidential free pass secret is untenable in a society based on the rule of law — and the January 6 committee should not accept it.
If we’re wrong and the department does have an investigation underway, reassuring the public of this fact is exactly the sort of circumstance that demands transparency, as the Justice Manual recognizes. The Justice Department owes the committee, and the public, some explanation of what it is doing — and the legal rationale behind its decision if it isn’t doing anything.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.