Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

In this post, I described that DOJ would be smarter to charge Mark Meadows with obstruction for his destruction of records relevant to an ongoing investigation than to charge him for misdemeanor criminal contempt of Congress. That’s because obstruction, a felony, would pose the risk of real jail time, which would be more likely to convince Meadows to cooperate with investigators and explain what he did as part of an attempt to steal the election.

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

When I’ve pointed this explanation out to those wondering why DOJ has yet to (visibly) act on the Meadows contempt referral the January 6 Select Committee the House sent over on December 14, they ask why DOJ can’t just charge Meadows with contempt now and then follow up with obstruction charges later.

The answer is clear. Doing so will make any ongoing investigation far more difficult.

We can see why that’s true from the Bannon case. Bannon has already used his contempt prosecution as a means to obtain evidence about an ongoing obstruction investigation implicating Trump.

In these two posts, I described what we know about DOJ seizing the call records for Robert Costello, the lawyer for both Steve Bannon and Rudy Giuliani, who is someone who has been at the center of Trump’s pardon dangling for years. There’s a full timeline here, but for the purposes of this post, the key details are:

  • On September 23, the House subpoenaed Bannon.
  • Around October 5, the lawyer for Bannon and Rudy started speaking with a lawyer for Trump, Justin Clark, about how to avoid responding on Bannon’s behalf.
  • Between then and Bannon’s deadlines, Costello twice invoked Trump to avoid complying (in an interview with DOJ, Costello admitted that, “CLARK would not identify for COSTELLO what would be covered under Executive Privilege” and “refused to reach out to the Committee on behalf of COSTELLO or BANNON,” though, “CLARK informed COSTELLO not to respond to item 17” (involving communications Bannon had with Rudy, Sidney Powell, and Mike Flynn).
  • Costello claimed he did not know the lawsuit Trump filed on October 18 was coming and also claims he had a draft in process to blow off another October 19 contempt deadline, but on the evening of October 18, he told a J6 staffer that Bannon would not show up.
  • Over the next three days, the J6 Committee went through the process of holding Bannon in contempt, completing the process on October 21.
  • On November 3, Costello met with the investigative team, ostensibly to persuade them not to indict Bannon; in the process, Costello made claims about his communications with Trump’s lawyers (as well as those for Meadows, Dan Scavino, and Kash Patel) that materially conflicted. In response, DOJ sought Costello’s call records, ultimately obtaining records dating back to the last act Costello did on Bannon’s behalf in the Build the Wall prosecution, March 5, 2021, thereby reflecting an interest in Costello’s actions that significantly precede the J6 Committee actions.
  • On November 12, DOJ indicted Bannon. At first, just Evan Corcoran and David Schoen (the latter of whom represented the former President in his January 6 related impeachment) filed notice as Bannon’s lawyers.
  • On December 2, Costello informed DOJ he would file a notice to join the Bannon defense team (he may have been tipped off by his firm that DOJ had asked for his call records for his business phone). DOJ noted that if Costello represented Bannon, it might impact Bannon’s ability to claim an Advice of Counsel defense. On December 8, Costello filed his notice of appearance on Bannon’s team.
  • On January 4, DOJ provided Bannon 790 pages of call records data pertaining to Costello (including from his law firm).

In the early appearances after Bannon’s indictment, DOJ said it wanted to go to trial immediately and believed the trial could take a matter of hours. Bannon, by contrast, wanted a fall trial, and believed the trial could take weeks. Carl Nichols, the Trump appointee who had a key role in the Harriet Miers contempt conflict who is presiding over the case, split the difference on time, and has otherwise seemed unconvinced by Bannon’s maximalist challenges to the indictment.

Nevertheless, because the trial did not happen immediately, until Bannon does go to trial (currently scheduled in July), then DOJ will be obliged to provide him a range of information that would be (as the Costello records clearly are) relevant to an ongoing obstruction investigation implicating Trump personally. And until DOJ has reason to claim a conflict has arisen between Costello’s representation of Rudy and Bannon (which would effectively tip Rudy off that he’s being investigated for January 6), anything shared with Bannon’s defense team will be shared with Rudy’s defense team (and probably, through Schoen, Trump’s).

Those wailing for immediate action got an indictment of Steve Bannon … which will, at most, lead to his jailing for a few months.

And in exchange, Bannon got records that suggest that DOJ treated his attorney as a suspect in a conspiracy to obstruct this (and the J6) investigation. Bannon got records that suggest that DOJ is investigating his lawyer’s activities going back at least to March 5. He was able to see some of the evidence DOJ has obtained in that ongoing investigation.

Until something resets the current status, the contempt prosecution of Bannon is far more useful to Bannon as a means to monitor the ongoing investigation into him and his co-conspirators than it is for DOJ. And DOJ is likely now limiting investigative steps into Bannon and Costello, accordingly, to avoid triggering a discovery obligation to share information with Bannon.

There are a whole lot of really good reasons why DOJ probably hasn’t acted on the Meadows referral yet — most notably that Judge Nichols, who would likely preside over a Meadows case as a related prosecution, has made it clear he believes criminal contempt is used only for those whom DOJ has no hope of coercing cooperation. If they charge Meadows with contempt, per Nichols, they have foresworn any hope of getting his cooperation.

Given what Meadows has already done, DOJ surely views the potential of Meadows’ cooperation as more useful than a time-consuming and restrictive contempt prosecution.

And that’s true, first and foremost, because charging Meadows with contempt now would further limit their ability to shield parts of their investigation from the suspected co-conspirators.

Update: Corrected the Build the Wall reference to mention Bannon, not Meadows.

40 replies
  1. BobCon says:

    The Bannon filing also seems to be a very public alarm bell warning conspirators to take DOJ seriously, with Costello as Exhibit A of what happens if they don’t.

    He seems to be warning that it’s not just the 1/6 Committee and charges arising from it, like his Contempt charges, that they need to be worried about — there’s an immediate danger. Basicallly, don’t trust Michael’s Schmidt’s take on things.

      • Rugger9 says:

        That would tend to help Bannon since as a criminal defendant he’d have more ways to access the government’s evidence. So, with that said, I am not sure I see the intersection where Meadows’ referral (also criminal IIRC) would be affecting Bannon’s case in either direction. The linkage to Bannon has already been established so there is no mystery there.

        If my guess is correct, is Meadows’ indictment being delayed because more details are expected from Mar-A-Lago records? After all, Meadows was in the room and allegedly played a key role in what was done without Bannon’s input (as far as we know).

        How long can the referral be delayed for indictment? Does it lapse when the J6SC closes up shop?

    • BobCon says:

      The contrast in this post between Bannon and Meadows helps explain it.

      Filing charges against Meadows creates new requirements for handing over evidence to defendants which aren’t required while a case is still only being investigated.

      I think the implication is that we may be seeing prosecutions being kept in a holding tank and only released in coordinated stages, not necessarily individually as soon as they have a case.

      • Al Ostello says:

        Perfect summary BobCon. Thank you.

        It confirms what I was thinking after reading the well detailed article from Dr. Wheeler.

      • Leoghann says:

        Given to what extent Bannon is a conniving SOB, his reaction about being charged with contempt is pretty much like Bre’r Rabbit’s pleas not to be thrown into the briar patch.

    • Rugger9 says:

      Don’t be too sure about that. Today we have the report circulating about Individual-1 spiriting off official documents to Mar-A-Lago on his way out of the WH (illegal as hell) and routinely destroying others (also illegal as hell).

      While this is not surprising from someone who acts like a 5-year old mob boss it is a clear obstruction rap waiting to be charged once it is identified from actual evidence what was destroyed / hauled away. For example, the so-called “love letters” from KJU are nowhere in the archives, among other records asked for by the National Archives but not provided yet. Of course the GQP flacks are downplaying the significance since these aren’t HRC’s emails or Hunter Biden’s laptop.

      So, as I had noted in earlier threads, some of the things that will get Individual-1 in deep legal doo doo is the fact that he won’t shut up, the rats will start leaving the ship and there will be more revelations not covered by the Mueller report. The screeching from Mar-A-Lago and the rallies are the tell for how desperate Individual-1 is. He will be charged by year’s end, I think and it will stick with no one willing to stick their necks out for him.

      The GQP won’t do it for noble purposes, of course, but because Individual-1 has hurt the brand too much. Watch what happens with DeSantis and Youngkin, specifically if they are able to separate themselves politically within MAGA world from Dear Leader.

      Will Pence testify to the J6SC? That would be the key indicator that he’s broken away from Individual-1. However as willing as Pence has been over the years to hew toward the fickle political winds I suspect he’ll find a reason to decline the invite.

      • Makeitso says:

        Based upon what evidence do you see Trump being charged? He freely admits he ripped stuff up and numerous people report it. In fact, it was well known at the time he was president that he was, in fact, ripping documents up and people laughed and said oh what a kidder he is.

        Trump, for all his faults, was/is smart enough to realize there are no legal consequences for his actions. He also knew being convicted of impeachment was impossible and he acted accordingly. There is no mystery here. He acted in the open.

      • Markus says:

        Agree, when Trump was a sitting president he was immune from the DoJ (impeachment was the only course of corrective action and that was never going to happen thanks to his GOP accomplices in the legislative branch) on any charges and that is why the obstructions uncovered by the Mueller Report went nowhere. Even had Barr wanted to pursue charges against Trump underlings and he did not, he knew Trump would just issue pardons.

        So, it is not a case that these obstructions were no longer relevant, they just were quashed. Corruptly to be sure, but just as dead anyway. That is not the case now and I would think that much of what Mueller did document could still be prosecuted now that Trump is in no position to pardon anyone. There is no statute of limitations on crimes that potentially have a capital punishment as remedy, nor does a statute of limitations start running till the last crime in furtherance of a conspiracy end.

      • madwand says:

        Supposedly there are 15 boxes of documents spirited off to Mar a Lago is there anything preventing the government from seizing those boxes of documents, after all some may be classified, and that would be a crime. Does probable cause exist or not?

    • Caliban says:

      If my memory serves me correct, the only sitting or former president charged with an offense was Grant for speeding. Considering our history of not charging presidents, I did not find Mueller’s results puzzling.

      I wouldn’t expect the feds to ever charge person number 1 for fear of the blowback but they certainly will go after others. Unfortunately, I do wonder if future presidents will emulate number 1.

    • emptywheel says:

      Quick quiz: Name the NY criminal defense attorney probably referred for prosecution for obstruction.

      Once you do that, you may apologize for misunderstanding what you were talking about.

    • Al Ostello says:

      I think of the Mueller report as a well detailed comprehensive marker that will come in handy for his crimes post Mueller report.

    • Ravenclaw says:

      Sorry Padfoot. Part II of the Mueller Report did not state that obstruction of justice is no crime. It opened with three main assertions: (1) Because of the DOJ policy against indicting sitting presidents, the report could not say if they believed DJT to be guilty [as it would give the accused no opportunity to challenge & disprove the allegations in court], (2) If they believed him to be innocent they could say so [as there is no possible harm in being called innocent], and (3) They were not saying he was innocent. Oh, and (4) Congress held the one constitutional recourse in its power. When testifying before Congress, Mueller restated point #4.

      Nothing there speaks to obstruction having been legalized in any way. All that happened is that Congressional leaders, knowing that their case would fail, did not move to impeach. Personally I disliked that decision – too much like a career prosecutor trying to keep their statistics up. But of course they were correct about the inevitable outcome. Even grave attempts to undercut the integrity of international relations or American elections was not enough to tip that scale toward justice.

  2. Barb says:

    In this piece author, Dennis Aftegut asks Bannon:

    “So where’s the beef, Mr. Bannon? If you don’t like what comes along with asserting an “advice of counsel” defense, don’t assert it.

    At that point, while the DOJ would not technically be compelled to drop the indictment, it likely would. Otherwise, at a subsequent trial, your defense lawyer would argue to a jury that you made amends and corrected your conduct. “No harm, no foul” is typically a winning argument for a white-collar, white-skinned defendant.

    Of course, you may be too proud. Or perhaps defiance is your brand. Or—if you’ll excuse a dab of cynical speculation—could it be that testifying would depress your Trump-base fundraising?” Yup!


    • emptywheel says:

      Most of that is not factually accurate.

      The records were obtained well before the discussions about advice of counsel (which are barely started). They were almost certainly obtained targeting Costello, not Bannon.

    • Markus says:

      Or, perhaps he too is a tool of a foreign power and has no choice. I mean if the FSB has footage of him offing a russian hooker or something…..

  3. Cotty Chubb says:

    In the Nov 3 bullet, “dating back to the last act Costello did on Meadows’ behalf in the Build the Wall prosecution,” did you mean on Bannon’s behalf? I didn’t know that prosecution involved Meadows, but there’s a lot I don’t know.

  4. WilliamOckham says:

    Costello said something in his interviews with the FBI that led them to request Costello’s electronic metadata records AND the FBI’s interest had nothing to do with Bannon’s contempt referral. It’s possible that it was an inadvertent slip from Costello or it could have been the FBI fishing for something for another investigation. I lean towards the latter.

    If the DOJ expected Bannon to use an advice of counsel defense, they might not have expected Costello to join Bannon’s criminal defense team (in which case, this stuff wasn’t discoverable by Bannon). However, they had to have taken that possibility into account when they requested the records. What is the FBI looking for in those records?

    I keep coming back to this bit:

    COSTELLO did not discuss disposing of any documents requested in the Select Committee subpoena with any attorneys who represented former President TRUMP.

    This has to be in response to a question. If I ever got asked a question like this by the FBI in a voluntary interview, I hope my lawyer would have enough sense to end the interview right there. If even if the honest answer to that question is no, you really have to ask yourself why they asked that question.

    Which was followed by:

    COSTELLO had “an email or two” with CLARK, who COSTELLO believed was the attorney who filed the lawsuit on behalf of former President TRUMP. However, COSTELLO subsequently learned the lawsuit was filed by a Virginia—based attorney named First Name Unknown FNU) BINNALL.

    If the question that elicited the second answer was did you have any email, text or phone conversations with any of the lawyers representing Trump, those questions should have set off even more alarm bells for Costello. He just plows ahead. I don’t get it.

    Of the four people who got those first subpoenas from the committee, Bannon seems to be the least likely to be asked to dispose of documents. Mark Meadows, on the other hand, almost certainly has documents that incriminate Trump.

    • emptywheel says:

      As I noted in my last post, after FBI got Costello answering that he had not been asked to dispose of any the requests, he then answered that Justin Clark had done so wrt the records involving Rudy, Powell, and Flynn.

      He said he hadn’t spoken to any Trump lawyers, and then said he did.

      What they’re looking for is pretty clear.

      • WilliamOckham says:

        I may be reading the bit about disposing of documents differently. I think the question was about disposing as in destroying, not about the disposition of the documents, i.e. whether to respond to the subpoena.

  5. DaveC says:

    One wonders how much DoJ anticipated Bannon’s tactic of delay enabling discovery into other investigations. Obviously they were hoping to get the trial over quickly, and Judge Nichols scheduled the trial in July.

    For those whose knowledge of history is weaker than Marcy’s, CNN story mentioning Nichols role in Miers executive privilege case. https://www.cnn.com/2021/11/18/politics/bannon-judge-carl-nichols-miers-case/index.html
    It doesn’t appear there was ever a court ruling in the Miers contempt case? (Yes, its true, CNN tends to shade its own advocacy into its reporting)

    • Leoghann says:

      A compromise was reached with the White House, and Miers and Karl Rove eventually testified. IIRC, the scope of the testimony desired was reduced, and fewer, if any, documents were requested and produced.

  6. misteranderson says:

    Brilliant analysis. I am not a lawyer. I never would have figured that out by reading my typical news sources. Thank you.

  7. Chuck says:

    One stray point here; for Bannon and Meadows, an indictment for contempt of Congress might not mean much. Steve Bannon gets indicted on about a biennial basis.

    But for the J6 Committee witnesses who resist cooperation — AND WHO ARE ALSO ATTORNEYS — any criminal charge is a game-changer because it risks their licensure.

    And so we see one lawyer after another, “cooperating” with the Committee on record production, appearances, etc., even if they have to decline answering based on self-incrimination claims (which do not carry any automatic risk of disbarment); they are not simply refusing to appear. I expect it is because they do fear a criminal contempt charge. So Eastman has appeared, testified, and took the Fifth. Jeffrey B. Clark appeared, testified, and took the Fifth. So too have a great many lawyer-witnesses.

  8. Alan Charbonneau says:

    Love it! I spent my 40-year career as a financial analyst and I love reading analyses explaining the issue and showing how unexpected consequences can result!😀

    People’ s intuition is often proven wrong and when someone who understands the issue points it out to them, it becomes obvious. Well done, Marcy. IANAL and even I get it😀

  9. viget says:

    Crazy thought combining this info w recent news about Trump’s predilection to destroy documents and details of Flynn’s firing and Vol. II, generally, of the Mueller report:

    Could DOJ be pursuing an OOJ 18 USC 1512(b) and/or (c) conspiracy investigation against Trump and Bannon ( plus/minus Flynn and Rudy)?

  10. timbo says:

    EW, thank you for clarifying your previous post! Honestly, for this current post I found that my questions were being answered in real time as I read along from top to bottom. Just amazing analysis and concision! Thank you for keeping in this stuff!

    • P J Evans says:

      It’s someone’s opinion. I doubt the committee will grant immunity to anyone who keeps pleading the 5th.

      • Marinela says:

        ok, good. Was worried when I read the opinion.
        Some of the democrats on the J6 committee look really tired.

    • Alan Charbonneau says:

      The article is by Frank Figliuzzi
      Marcy’s tweet on Dec 28, 2021:

      “Poor @FrankFigliuzzi1 got called on blathering ignorantly and he first played dumb then blocked bc he didn’t want his followers to learn that he’s not actually a good source for details about the Jan 6 investigation.”

      • bmaz says:

        Figliuzzi often seems to mean well, but has never been particularly good on legal issues vis a vis courts. It is bizarre that he keeps getting propped up in that role.

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