After Steve Bannon refused to comply with a subpoena issued by lawmakers to investigate the January 6th riot, the House of Representatives decided Thursday to hold him in contempt of Congress. The subpoena was to enable the Department of Justice and the Department of Justice to decide whether criminal charges should be brought against Trump's ally.
Steve Bannon, former White House Chief Strategy Officer, leaves Manhattan Federal Court on Aug 20, [+] 2020. Getty Images
The Key Facts
Bannon was declared in contempt by the House, which voted 229 to 202. Nine Republicans voted along with every Democrat. This vote follows a House select committee that investigated the U.S. Capitol Riot unanimously recommended Bannon be held in contempt of Congress. He didn't testify before Congress and didn't turn over any documents. The January 6 committee members believe Bannon may have relevant information on the riot. They argue that holding him in contempt of Congress will encourage other witnesses and to cooperate. However, some House Republicans who opposed contempt for Bannon have criticized the seven-member select committee comprised of two Republicans and seven Democrats as being too partisan. Bannon's lawyer argued that his client cannot follow the subpoenas of the select committees because ex-President Donald Trump plans to assert executive confidentiality, a legal doctrine that allows the president to keep certain documents secret. He said Bannon would reconsider his position if Trump's position changes. Forbes reached out to Bannon's lawyer for comment.
What to Watch
Now, the DOJ will review the contempt resolution and take possible criminal action. Federal law states that witnesses who refuse to give evidence or turn over documents to Congress could face up to 12 month imprisonment and a fine, if found guilty. Although the select committee believes that prosecutors have a legal obligation to present cases of contempt of Congress to a grand jury for possible criminal charges, the DOJ believes it can exercise its discretion and has not prosecuted witnesses in the past. The Obama-era DOJ didnt charge Internal Revenue Service official Lois Lerner after a Republican-controlled Congress held her in contempt, and the Trump-era DOJ did not prosecute Attorney General William Barr and Secretary of Commerce Wilbur Ross after Democrats held them in contempt.
Biden stated Friday that he believes that the DOJ should prosecute witnesses who refuse to comply with the January 6 committees subpoenas. The DOJ, however, has not been as definitive and promised to evaluate the possibility of criminal prosecutions independently. At a hearing earlier Thursday, Attorney General Merrick Galrland stated that his department would apply the facts and law and make a decision consistent the principles of prosecution.
A number of Trump allies and staffers, including Mark Meadows, the former Chief Of Staff, were asked by the select committee to provide records relating to January 6, as well as Trump's failed attempts to reverse his election loss. Bannon's case was a request by lawmakers for an ex-Trump campaign official, to be deposed and produce a variety of documents including communications with him and his team regarding the events of January 6th and Trump's false election-rigging accusations. The committee alleges that Bannon played multiple roles in the preparation of the riot. He allegedly met with Trump allies one-day beforehand and predicted on his podcast that all hell would break loose tomorrow.
The only way Congress can compel witnesses is to refer criminal charges. Reuters points out that legislators can also file a civil lawsuit and request a judge to order a witness cooperate. However, this process is often slow. Congress can also use the House or Senate Sergeant at-Arms to arrest and detain a witness, a process known as inherent contempt. However, this approach is difficult logistically and has not been used since 1935 according to a Congressional Research Service Report.
Trump sued the January 6 Committee and the National Archives and Records Administration this week to prevent lawmakers from obtaining a variety of federal documents that date back to his administration. Trump claimed that many executive branch records which were subpoenaed to the committee by the January 6 Committee and the National Archives and Records Administration are protected by executive privilege. This suit was filed after Biden refused to invoke executive privilege for the first wave of documents requested.
We Wont Take No for an Answer: Jan. 6 Committee Recommends Keeping Steve Bannon in Criminal Contempt (Forbes).
An Update on the Prospects of a Contempt Prosecution against Steve Bannon (Lawfare).