Subpoena wars: Washington is on a path to mutually assured destruction

S E E D E D   C O N T E N T

In an initial court appearance following his arrest on Friday for contempt of Congress, former Trump adviser Peter Navarro stood before an obviously concerned federal magistrate. "Every time that you're speaking," Judge Zia Faruqui tried to explain, "it could mean potentially putting yourself at risk."

It was entirely sensible advice about self-protection — and it was promptly ignored. Navarro, 72, went directly outside and blasted the charge against him, the Democrats, and the FBI.

Judge Faruqui's concern was almost charmingly naive. We live in an age of the sensational, not the sensible. The Navarro case is just one skirmish in a subpoena war engulfing Washington. No one seems to be thinking much beyond the next election.

In the buildup to next week's start of public hearings by the House of Representatives' Jan. 6 investigative committee, Democrats have subpoenaed Republican colleagues and held former Trump officials in contempt. Then, instead of simply arranging for Navarro to voluntarily surrender, the Justice Department made a dramatic public arrest of him at an airport and dragged him off to jail in handcuffs.

These subpoena fights seem to be unfolding with little consideration given to the potential costs, either for Washington institutions or the individuals involved.

Democrats circle the firing squad

A variety of polls show, according to the political site FiveThirtyEight, that "Americans are moving on from Jan. 6th — even if Congress hasn't." With waning interest in the investigation, congressional Democrats and some in the media have pushed "blockbuster" new disclosures. However, many of their disclosures simply confirm what is already known: Then-President Trump and close associates wanted to challenge Congress' certification of the 2020 presidential election and, instead, force Congress to select the next president. I wrote about that likely strategy just a couple weeks after the election, but that fruitless effort turned into a full-fledged riot in the Capitol.

The House hearings are likely to add details that damn Trump for fueling the riot and failing to immediately call on the rioters to pull back. Yet many of us reached the condemnation stage years ago; I reached that point while Trump was still speaking on Jan. 6, 2020, and opposed his efforts to challenge the certification.

The problem is not that the committee will move forward with hearings or a report. Despite its partisan composition and agenda, there is always a value to greater transparency about what occurred on that tragic day. The problem is the effort to ratchet up interest through conflict. The committee has taken the rare step of subpoenaing GOP colleagues, including House Minority Leader Kevin McCarthy, and threatening to hold them in contempt like Navarro and other former Trump officials.

Despite years of bitter political divisions, the two parties have long avoided using subpoenas against each other. It was viewed as a step toward mutually assured destruction if House members unleashed inherent investigatory powers on each other. House Democratic leaders, however, shattered that long tradition of restraint despite the fact that they may gain little from the effort. What they will lose is a long-standing detente on the use of subpoenas against colleagues — and they are creating a new precedent for such internal subpoenas just months before they could find themselves in the minority. Today's hunters then could become the hunted, if Republicans claim the same license after November's elections.

The House already is a dysfunctional body that allows for little compromise or dialogue between parties. The targeting of fellow members now will remove one of the few remaining restraints on unbridled partisan rage.

Justice delayed or justice denied?

Attorney General Merrick Garland is well on his way to setting a record for the prosecution of congressional contempt. The Justice Department has consistently refused to submit congressional contempt cases to grand juries, including a flagrant act of contempt by Obama-era Attorney General Eric Holder. There is ample basis for this charge as well. It is not the substance but the selectively and speed of the charges that is notable. Navarro was only held in contempt in April and is now being prosecuted by a department long known as the place where contempt sanctions go to die. Yet, the Navarro case could quickly take a wild turn.

Navarro claims he offered to compromise with the committee but that he was asserting his right to remain silent. Putting aside such mitigating circumstances, the problem for the Justice Department could be the calendar: Despite moving at an uncharacteristically fast pace, the Navarro case likely will extend beyond November's midterms. If Republicans retake the House, they could seek to retroactively rescind the House's contempt vote on Navarro.

Technically, the Justice Department could insist that the act of contempt and the referral vote occurred under the prior Congress. Given the issuance of an indictment, the Biden administration could insist on pursuing the prosecution even if the alleged victim is no longer claiming to be harmed. And some Democrats likely would file to support his continued prosecution, even if a new majority of the House filed to seek dismissal of the case.

This prosecution and any appeal is likely to extend beyond the duration of the House committee. Last November, the Justice Department indicted former Trump adviser Steve Bannon on the same grounds; his trial will not occur until July. That will be the first such prosecution since 1982, when Rita Lavelle, a former Reagan-era EPA official, was indicted for failing to answer congressional questions. (Lavelle was acquitted of that but then later convicted of lying to Congress.)

The Biden administration did not have to act on this before the November elections. The statute of limitations for contempt of Congress is five years. If it hoped to get a quick plea and cooperation from Navarro, his defiant courthouse colloquy makes that less likely. The question is whether it will pursue these two misdemeanors — which could result in as little as 30 days and no more than a year in jail — if the next House seeks to rescind the contempt referral.

Self-defense or self-immolation?

That brings us back to Navarro. Judge Faruqui encouraged Navarro to consider the basis of his self-defense when Navarro seemed intent on self-immolation. In addition to announcing that he would represent himself, Navarro made an extended statement on the steps of the courthouse in his defense. He then incongruously said he could not discuss "legal matters" before plunging again into his legal defense points.

Navarro is known as someone who tends toward the path of greatest resistance. In a city known for highly managed criminal defendants with legions of lawyers and PR advisers, Navarro was a captivating figure as he held forth outside the courthouse. Yet for all that he has in terms of personal guts, he lacks legal authority. The problem is that even as he claimed executive privilege to avoid answering any of the House committee's questions, he was publishing a book and giving interviews on the very subject matter of the subpoenas. It was an ill-considered course that may make him an icon on the right but could also make him a convicted defendant. As he repeatedly pitched his book outside the court, it seemed clear that his priority was not acquittal.

Navarro at one point asked, "Who are these people?" I have found myself asking the same question about all of the players in this subpoena war. Institutions and individuals alike seem to be in a crazed fit with little concern for how their actions may play out beyond the next election. But the greatest costs will be borne by the public, if our legal proceedings become as performative and shallow as our politics.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.