The Jan. 6 Committee Voted to Hold Two More Trump Aides in Contempt of Congress. Will the Justice Department Prosecute?

The House select committee investigating the Jan. 6 attack on the Capitol voted Monday night to move forward with contempt charges against two of Donald Trump’s former aides for their participation in efforts to overturn the 2020 election and their subsequent months-long refusal to comply with the committee’s subpoenas.

The committee alleges that Peter Navarro, a former White House trade adviser, and Daniel Scavino Jr., a former communications chief, have been uncooperative in its effort to compile a detailed accounting of what happened on Jan. 6 and in the days leading up to it. In a 34-page report released Sunday, the committee claims both men played a role in Trump’s last-ditch effort to delay Congress’ certification of the presidential election, and since have refused to sit for interviews or turn over documents to the committee despite being issued subpoenas.

Monday’s vote is the latest in a series of referrals against high-profile Trump allies and White House officials facing similar repercussions—including long-time Trump ally Stephen Bannon, former Chief of Staff Mark Meadows and former Justice Department (DOJ) official Jeffrey Clark.

The committee can refer individuals to the Justice Department, but ultimately it’s up to DOJ whether to pursue charges. So far, only Bannon has been indicted by a federal grand jury on charges of contempt of Congress. For Meadows, who briefly cooperated with the committee before reversing course behind a murky invocation of executive privilege, it’s been 104 days since the House voted to hold him in contempt. Since then, the Justice Department has been silent about its decision on whether to prosecute him.

“This committee is doing its job,” Rep. Zoe Lofgren, a Democrat from California, said during Monday’s committee meeting. “The Department of Justice needs to do theirs.”

The referrals from the Jan. 6 committee create a political and legal challenge for Attorney General Merrick Garland, who has repeatedly expressed a desire to restore faith in DOJ’s independence and keep the Department from getting involved in political fights. Even though DOJ has already charged hundreds of people who participated in the riot, indicting a White House official is much more complicated, experts say. And the Department’s long silence on Meadows could indicate it wants to take things slow—or at least keep negotiations behind closed doors—to avoid its work from being spun as a political attack.

“Garland and the Justice Department as a whole have made it a priority to restore the independence of DOJ from the White House, particularly in the context of criminal prosecution,” says Jonathan Shaub, a law professor who previously served in the Obama Administration’s Department of Justice. “But they know it will be a difficult prosecution.”

The Justice Department did not immediately respond to a request for comment.

Some suggest that DOJ’s long silence on whether to pursue charges against Meadows may be because Garland is waiting to see how current cases progress before making a decision. Bannon is currently battling the Justice Department in a case scheduled for July. If his argument that he was following Trump’s claims of executive privilege holds up in court, it could significantly complicate matters for prosecuting Meadows or other Trump allies.

Separately, Meadows filed a civil lawsuit in December against all nine members of the Jan. 6 committee asking the court to invalidate two subpoenas that the panel had issued to him and his cell phone carrier. There hasn’t been a decision in that case yet. “What I think the Justice Department is likely doing is seeing how that lawsuit is playing out before making a determination,” says Renato Mariotti, a former federal prosecutor and legal analyst. “The DOJ wants to win cases that it brings, and a loss in this type of matter would have an impact of reducing compliance with congressional subpoenas in the future.”

Another possibility, according to Shaub, is that certain offices within DOJ—such as the criminal division and the Office of Legal Counsel—disagree on whether or how to proceed. Internal dialogue and debate are usually a key part of any high-stakes criminal case, but before making a final decision, the DOJ needs to ensure that prosecution is consistent with past opinions and guidelines from its own in-house experts, Shaub says.

It’s been more than three months now without DOJ announcing a decision on whether to take up the charges against Meadows. For Navarro and Scavino, what the Department eventually decides will likely play a major role in their own cases. (Now that the Jan. 6 committee has voted, the full House will soon vote on whether to refer Navarro and Scavino to the Justice Department, which is likely to pass given the House’s Democratic majority.)

“The Department of Justice must act swiftly,” committee member Rep. Elaine Luria, a Democrat from Virginia, said Monday. “I will echo what my colleagues have already said but more bluntly: Attorney General Garland, do your job so we can do ours.”