“Justice Dept. backs House over Jan. 6 subpoena to Meadows”

POLITICO reports on this “landmark filing” from DOJ, supporting the obligation of Meadows to testify to the House’s January 6 select committee. The filing is well worth reading and reflects the typically high quality of DOJ’s lawyering. There is one aspect I’d like to highlight. DOJ repeatedly refers to the relevant testimony privilege for “immediate advisers” to former presidents, which DOJ asserts is a qualified and not absolute privilege, as being applicable to the “official duties” under Article II of the former president and those immediate advisers. I count the use of the term “official duties” thirteen times in this 17-page document. DOJ does not define or really discuss the scope of this key term, but I would argue that it does not encompass any conversations that Trump and Meadows might have had prior to January 6 about the plan to orchestrate alternative slates of electors in the hope that these alternative slates would be considered in the January 6 joint session.

An incumbent president has no official role under Article II regarding a state’s appointment of electors who will cast ballots to determine the officeholder for the next presidential term. Once a state has made its appointment of electors and has reached a “final determination of any controversy or contest concerning the appointment” pursuant to 3 U.S.C. 5, and those appointed electors as reflected in that final determination have cast their electoral votes, any attempt by an incumbent president to have the January 6 joint session consider a second set of electoral votes from that state (a set different from the one cast by the electors appointed pursuant to the “final determination” as set forth in 3 U.S.C. 5) would be conduct by the incumbent president unrelated to any official duty pursuant to Article II authority and, instead, conduct solely in the capacity of a candidate for reelection seeking to negate the finally determined result achieved pursuant to applicable federal and state laws, including 3 U.S.C. 5. Whether any such conversations about alternate electors that might have occurred between Trump and Meadows took place in the Oval Office, elsewhere in the White House, at Mar-a-Lago, or some other place, should make no difference. Such conversations would be entirely campaign activity, not in any way consideration of presidential duties to take care that the laws be faithfully executed.

Pat Cipollone, White House counsel at the time, recognized this key distinction. In a portion of his testimony aired at the January 6 select committee’s hearing on July 12, he was asked whether Trump should have conceded defeat after all of the litigation over the outcome of the election had been finally determined. Cipollone’s response appropriately was “I was the White House counsel. Some of those decisions are political.” This response reflects the understanding that some matters are within the ambit of Article II executive authority, while other matters are purely campaign-related, and any decision on the part of Trump to fight on after the appointment of electors in all the states had been finally determined, rather than conceding defeat at that point, was not a presidential decision in the exercise of Article II authority, but instead solely a candidate’s decision in the context of attempting to win an election even though a final determination to the contrary already had been reached. This same distinction between official Article II executive matters, on the one hand, and a campaign’s efforts to win an election, on the other, was also recognized by Bill Barr and other DOJ officials in their own various testimonies to the January 6 select committee whenever they made plain their understanding that it was not appropriate for DOJ, or any part of the Executive Branch including the White House itself, to act as an arm or extension of Trump’s reelection campaign.

While DOJ’s important new filing discussed in the POLITICO article contends that the January 6 select committee’s need for Meadow’s testimony overcomes whatever qualified immunity exists in this context, and thus as a practical matter the committee should hear from Meadows on his and Trump’s involvement in the alternate elector scheme regardless of the key distinction recognized by Cipollone and others, I think it is worth emphasizing the point that because the scope of any immunity–whether qualified or otherwise–would extend only to “official duties” under Article II, as DOJ itself repeatedly asserts, it would not extend to discussions of the alternate elector scheme for the basic reason that pursuit of that scheme was entirely a campaign, and not Article II, matter.

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