Mark Meadows, a onetime chief of staff to former President Donald Trump, has been ordered to testify in a Georgia court about his role in an alleged scheme to alter the outcome of the state’s 2020 election in his then-boss’s favor.
The question is not when he’ll testify, however—it’s if.
While South Carolina Circuit Judge Edward Miller ruled Wednesday Meadows must comply with a petition by Fulton County District Attorney Fani Willis seeking testimony before a Georgia grand jury, the final say in the matter could likely rest with conservative Supreme Court Justice and Trump ally Clarence Thomas, whose wife—Ginni Thomas—encouraged Trump in text messages not to concede the presidency after his loss to the Democratic winner, Joe Biden.
Earlier in the week, Thomas unilaterally issued a stay on a similar order compelling South Carolina Republican Senator Lindsey Graham to testify before the Georgia grand jury, prompting outrage and accusations of corruption from liberals on social media.
It is unclear whether Meadows—one of Trump’s most loyal acolytes—would pursue a similar request. Meadows did not answer a text message requesting comment, and his attorneys said in a statement Wednesday they would continue to pursue a number of remaining avenues to appeal the decision in South Carolina, writing that “it would be inappropriate to comment further on these issues until the Judge has issued a final written order.”
It is also unclear whether Thomas—who offered no public rationale for his intervention in Graham’s case—would side with the former president for ideological reasons.
Earlier this year, Thomas was the lone dissenter in a ruling permitting the House select committee investigating January 6 to access presidential records pertaining to the attack.
However, as facilitator of emergency requests for the 11th Circuit Court of Appeals, Thomas notably sided with the Department of Justice earlier this month following appeals by Trump’s attorneys to restore an outside reviewer’s authority to withhold up to 100 classified documents found at Trump’s Mar-a-Lago estate from evidence in a trial evaluating whether he illegally removed them from the White House.
Rory Little, a professor of law at the University of California-Hastings in San Francisco, told Newsweek in an interview that there have been signs a decision to issue a stay on Meadows’ testimony might not be decided by ideology, but on the legal merits.
Notably, Graham’s attorneys argued the senator was exempt from an order to testify under the speech and debate clause of the U.S. Constitution, which protects members of Congress from prosecution for conversations they have in performing their duties. Such a practice is also not limited to conservative justices: On Wednesday, liberal Supreme Court Justice Elena Kagan temporarily blocked a subpoena from the January 6 committee for the phone records of Arizona Republican Party Chairwoman Kelli Ward, who argued the subpoena infringed on her First Amendment right to freedom of association.
Meadows, Little said, could potentially argue he—as a member of the presidential staff—is covered by executive privilege, potentially giving him a legal avenue to exempt himself from testimony. The main distinction between his case and Graham’s, however, is that one is a sitting member of Congress. The other, a private citizen.
“The big issue separate from Lindsey Graham is whether a former president can still claim executive privilege, or if the current president gets to decide what’s executive privilege,” Little said. “The second is whether staff to the president include the same claim of privilege that the president himself would have. Meadows’ claim is not a frivolous claim. But I don’t think you can say it’s going to come out a certain way because of the politics of the justice whose circuit the case is in. I just think that’s too simple.”
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