Stan Brand, a former House counsel, stated that the committee faces a difficult task. He orchestrated the 1982 referral of the then-EPA chief of criminal contempt of Congress to the Justice Department. There is no easy way to comply.
Criminal contempt advocates argue that success is not measured in the number of completed prosecutions but in the ability to persuade targets to cooperate. For example, congressional Democrats claim that the threat of contempt brought former Secretary of State Mike Pompeo, and former Attorney General William Barr, to the negotiating table last spring, after they initially refused documents and testimony in separate investigations.
However, coaxing cooperation with Bannon will be difficult as Jan. 6 investigators claim that Bannon had critical communications with Trump during the attack on Capitol Hill. Bannon has filed a claim for executive privilege, which, regardless of how weak, will likely force the committee to enter into years-long litigation. This would also tie in with Trump's lawsuit that seeks to quail the authority of the select panel. Bannon also indicated that he would not be willing to work with the panel until these legal issues are resolved.
According to Lisa Kern Griffin, a Duke University expert in criminal law, there is no way to resolve this issue in litigation within the timeframe that the committee is working on.
Multiple Democrats who have been familiar with the discussions say that if the House holds Bannon in contempt, a vote is scheduled for Thursday. Jan. 6 committee members unanimously expressed hope Attorney General Merrick Garland would share their urgency to hold Bannon responsible for his defiance of subpoena.
Hill Democrats were even more excited Friday when Biden answered a reporter's question and said that those who defy the select panel should be tried. DOJ quickly released a statement stating that the White House would not be involved in any prosecution decisions.
Even though the left is excited about Bannon's possible accountability, legal experts warn that prosecution for contempt of court is much more difficult than it seems.
Thomas Spulak, another ex-House counsel, stated that there has never been a successful prosecution under criminal contempt statute since at least the Reagan Administration. While there may be some political alignment, DOJ has institutional considerations. One of these is whether Garland would like to continue the Trump Administration subpoena battles.
Jan. 6: The Jan. 6 panel presented its case against Bannon for criminal contempt in a 26-page report. Tuesday night's vote by the panel unanimously declared Bannon guilty of contempt.
"Mr. Bannon stands out in total defiance of our subpoena. This is unacceptable. This is unacceptable. This defiance could encourage others to follow in the footsteps of Mr. Bannon," stated Chair Bennie Thompson (D–Miss). .
The panel stated in its report that there is no reason to believe that Mr. Bannon's January 6th communications with President Trump are subject to privilege. The Select Committee believes that Mr. Bannon's testimony about January 6th communications with President Trump is admissible because of executive privilege.
Some of the legal experts who supported House Democrats in their argument against criminal contempt charges against Lois Lerner, then-IRS official in 2014, said that Bannon's case was so simple that it is worth bringing sanctions against him even though they don't get the testimony they want.
Sam Buell, a former federal prosecution attorney who was involved in the case against Enron, said that if such conduct is not addressed, what incentive do people have to obey a lawful instruction?
Griffin, the Duke legal expert, stated that criminal contempt charges could be filed even if Jan. 6's committee dissolves following the 2022 elections. Although it wouldn't result in testimony, it could send the message that defying congressional subpoenas can have consequences.
There are many cases that have landed at DOJ's door only to be denied in the history of congressional contempt proceedings. In 2012, a Republican-led Houses contempt referral was denied against Attorney General Eric Holder. DOJ also argued in 2008 on behalf of two Bush White House officials who were fighting a congressional demand to provide information.
Brand was House counsel as lawmakers sought documents and testimony from Anne Gorsuch Burford (then-EPA head), who is the mother of Supreme Court Justice Neil Gorsuch. DOJ, however, argued in her favor against the subpoenas. After a lengthy fight, she resigned and made a deal with Congress.
In the 1970s, Richard Kleindienst and G. Gordon Liddy, both Watergate scandal victims, were convicted of criminal contempt of Congress and pleaded guilty to refusing to answer questions from Congress. Richard Helms, former Director of the CIA, was sentenced to a suspended sentence in 1977 and fined $2,000 under that same statute. Many contempt cases stemmed from the House Un-American Activities Committee. Several convictions stemming out of those cases were later overturned due to procedural errors.
Democrats claim that Bannon's behavior is especially brazen, as he refuses to answer any questions from the committee. He declined to appear at his Oct. 14 deposition.
His actions are in line with claims made by Trump and George W. Bush White House officials, who claimed they were immune to congressional subpoenas. They didn't even have the obligation to appear.
Lawyers claim that the Supreme Court's decision last year regarding a House request for Trumps financial records has undermined the broad privilege claims Trump and Bannon are making. The justices rejected Trump's claim of absolute immunity in that case. They also created a complicated test for courts to apply to congressional subpoenas cases, which Trump already relied on to support his lawsuit against Jan. 6 committee.
Democrats claim that Trump's resignation from office and Bannon's informal advice to Trump on Jan. 6, further undermine executive privilege claims. However, the courts have not ruled that either of these facts is fatal.
Prosecutors would need to prove that Bannon willfully disobeyed Congress if he was charged under the misdemeanor Contempt statute. This could prove difficult since Bannon appears to have legal advice from both his own lawyer and Trump's lawyers. He may also be able to present legal arguments against the subpoena. According to his lawyer, Bannon will comply with any court order.
These factors may also be grounds for DOJ to not indict him.
Brand stated that the criminal statute requires proof beyond reasonable doubt of all elements of an offense. There will be some interesting conversations in the U.S. Attorney's Office. I don't know where they will go.
However, Bannon's privilege claim that it covered personal and political activities but not connected to Trump seems very weak. Prosecutors may consider Bannon's refusal to answer these questions so inexcusable that they are inclined to bring the criminal case.
Experts and Congressmen have examined the legal landscape and asked themselves if it is time for legislators to regain their most powerful power, inherent contempt. This allows the House to arrest and fine any witnesses who are not compliant, at least in the beginning.
Many Jan. 6 committee members noted that inherent contempt was on the table, even if House lawyers were reluctant to entertain it due to the potential conflict.
Spulak said that this has not happened in more than 80 years. Perhaps it is time to reconsider.
This report was contributed by Heather Caygle, Nicholas Wu, and Nicholas Wu.