First published by Daily Kos

Before the indictment of Trump adviser and former Campaign Chair Steve Bannon, a flurry of articles warned that the Department of Justice (DOJ) had not issued a criminal indictment in such a case in years. Many predicted that no indictment would be forthcoming, and the long delay between the House handing over the request to the DOJ and any resulting action seemed to be proving them right—until the moment when that indictment came down, and it became clear that the DOJ has simply needed time to get people, and a grand jury, in place.

On Wednesday, the House handed over another request, this time against former Chief of Staff Mark Meadows. Once again, major media outlets are weighing in that the DOJ is in a pickle. According to The Washington Post, returning an indictment against Meadows risks undermining executive privilege. Also, such an indictment “is another political headache for Attorney General Merrick Garland, who came to the department hoping to extricate the Justice Department from partisan infighting after the Trump presidency.”

The answer to these twin dilemmas is no. And also no. 

According to the letter from Meadows’s attorney, his client can’t be called to testify before the House select committee because “as a former Chief of Staff he cannot be compelled to appear for questioning and that he as a witness is not licensed to waive Executive Privilege claimed by the former president.”

This isn’t just wrong, it’s wrong in just about every possible way. 

Donald Trump has no claim to executive privilege. Meadows absolutely has no claim to such a privilege. The matter of privilege rests only with the sitting executive, and President Joe Biden has already determined that releasing information related to the Jan. 6 assault is necessary because of a compelling national interest. Trump has been fighting in court, protesting the release of documents from the national archive. He lost in district court. He lost in the court of appeals. If the Trump-majority Supreme Court decides to take it up, he’ll lose there. 

Former executives don’t have privilege. Their communications are already subject to release by the current executive. That’s not some kind of radical threat to the idea of privilege. That’s just how this works.

Perhaps more importantly, there’s no such thing as executive privilege not to appear. The privilege afforded conversation with the sitting executive is strictly limited, and can only be invoked in response to specific queries. That’s even true of privilege under the Fifth Amendment, and that is a much more robust license than the never-that-strong grant of executive privilege.

The actual threat is not to the security of White House conversations, but to the safety of the nation and the ability to address crime conducted in conjunction with the executive branch. Donald Trump has regularly made attempts to expand the bounds of executive privilege. He has claimed it in connection with campaign workers who were never official members of staff. He has claimed it as protection for conversations among employees of agencies from the EPA to CPB, even when those conversations never reached his ears. He has continued to claim it even though his time in office is over.

The only political risk for Garland is the one that would be generated by not following through on the request for an indictment against Meadows. Because accepting the idea of privilege as it’s being put forth by Trump and his team would grant the executive branch a license to commit any offense, and be protected from consequences indefinitely. That’s not why executive privilege exists, and it’s certainly not a license that Garland should endorse.

Indicting Meadows should not be seen as a political statement, but for what it is: enforcing the law.