Last month, U.S. District Court Judge Carl Nichols asked the Justice Department to rule on what immunity, if any, Meadows is entitled to in the dispute.
“When a congressional committee requests the testimony of a presidential adviser immediately after the end of the president’s term, the relevant constitutional concerns are mitigated. Accordingly, Commerce does not believe that the absolute testimonial immunity applicable to such counsel will continue after the President’s departure. But constitutional concerns continue to hold sway,” the department says in the new brief, signed by DOJ Civil Division attorney Elizabeth Shapiro and endorsed by other senior officials.
“In the opinion of the Department of Justice, a form of qualified immunity is appropriate to address these continuing and significant separation of powers concerns,” the filing adds.
The department’s brief concludes that these advisers only retain this “qualified immunity” after the president they served has left and that this immunity can be waived by Congress if lawmakers prove they need the information at issue. and can’t get them anywhere else.
With respect to Meadows, Shapiro argues, the select committee had discharged that burden. As part of that determination, the DOJ pointed to recent testimony by Cassidy Hutchinson, Meadows’ aide who provided explosive testimony about Trump and Meadows’ actions before and on January 6.
The Justice Department’s decision to side with the House committee in the civil suit is notable for another reason: Last month, department officials passed up the opportunity to pursue criminal charges against Meadows for challenging the same House panel.
The new Justice Department filing does not mention or explain prosecutors’ decision not to bring criminal charges against Meadows, but the decision could signal that department attorneys believe the validity of his allegations regarding the privilege of the executive is subject to reasonable differences of opinion.
Some language in the brief warns of the risks of widespread congressional subpoenas, including the possibility that “a chamber of Congress could use its investigative powers to question or embarrass a former president’s immediate advisers to attack the former president solely for partisan purposes”.
This kind of scenario “could weaken the presidency” and contributes to why former advisers to former presidents are shielded from congressional indiscretions, the brief adds.
Members of the select committee were furious with the department’s decision not to prosecute Meadows, urging the DOJ to provide more clarity on its rationale. The DOJ has not yet done so, although Friday’s filing provides additional details about the department’s considerations.
Nichols urged the Justice Department to address immunity claims in the Meadows lawsuit, though the rationale could be applied in other lawsuits the select committee is fighting.