Democrats should have waited until a court could rule on former President Donald Trump’s executive privilege argument before it voted to hold former White House chief of staff Mark Meadows in contempt of Congress, according to legal expert Alan Dershowitz.
“In the absence of a definitive judicial decision to the contrary, former chief of staff Mark Meadows would seem to be required to accept former President Trump’s claim of executive privilege,” Dershowitz wrote. “Were he now to divulge communications that the courts ultimately held were privileged, the damage would be irremediable.
“The cat could not be returned to the constitutional bag. On the other hand, if he does not now disclose, and the courts ruled that he must, the only harm would be some delay. The balance of harms clearly favors non-disclosure at this time.”
The House voted Tuesday, almost exclusively on party lines, to hold Meadows in contempt of Congress for refusing to cooperate with the committee investigating Jan. 6, subpoenaing him to sit for a deposition and provide documents from his time in the White House.
Meadows argued the some documents are covered by former President Donald Trump’s executive privilege and therefore cannot be released. He is currently suing the panel over this issue.
“That is precisely why it is so outrageous for the committee now to be seeking the criminal indictment of Meadows for refusing to disclose material that may well be constitutionally privileged,” Dershowitz added. “They should seek to have the courts rule first on the constitutional issue, and if Meadows then refuses to comply with a judicial order, they can seek criminal penalties.
“This chronology is especially required because Meadows has said that he would comply with court orders.”
Ultimately, the ball is in the Justice Department’s court and it should reject the House’s recommendation for criminal contempt of Congress charges against Meadows, Dershowitz concluded.
“The Justice Department should therefore refuse any congressional demand to indict Meadows,” he wrote. “If the Justice Department improperly secures an indictment from a grand jury — which they can easily do because, as one judge put it, grand juries would ‘indict a ham sandwich’ if asked to do so — the courts should immediately dismiss it and demand that the Justice Department first get a judicial ruling on the constitutional issue.”