For more than two years, the Democratic-controlled House struggled to obtain crucial testimony from Trump White House counsel Donald McGahn in its Russia investigation. When he declined to submit to a subpoena, they fought it out in court. By the time an agreement was reached for McGahn to testify this year, Donald Trump was no longer in the White House, and the Russia issue had faded in both import and memories. McGahn said frequently in his testimony that he no longer fully recalled important episodes.
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It was a familiar and effective tactic the Trump team deployed in the many investigations it faced: To do whatever it took to run out the clock — even if it ultimately lost in court — buying time until the issue lost salience and political impact.
This time, though, the House and its select committee investigating the Jan. 6 attack on the U.S. Capitol by a pro-Trump mob took a very different tack. And it resulted in both a legally and practically significant result.
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Rather than try to get a court to make former White House adviser Stephen K. Bannon testify, the Jan. 6 committee instead moved quickly to recommend he be held in contempt of Congress. That put the decision into the hands of the Justice Department, which would need to decide whether to file criminal charges. But it would at least be quicker.
On Friday, this approach — an extraordinary gambit necessitated by an extraordinary effort to stymie investigators for most of the past five years — led to an extraordinary outcome: Bannon has been indicted by a federal grand jury, making him the first person charged with contempt of Congress since 1983.
While an indictment is significant — it’s actually the second time Bannon has been indicted in fewer than 15 months, with the first earning a preemptive Trump pardon — the move is less punitive than it is precedent-setting.
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Other witnesses, including former Trump White House chief of staff Mark Meadows, who are also resisting cooperation with the inquiry, now have to contend with the prospect of potential criminal charges. Bannon didn’t seem to fear that as much as the others (given his own very recent history), but it might loom larger for others.
A lawyer for Meadows signaled earlier Friday that he would also defy a subpoena, making him to be second in line for a potential contempt vote and DOJ action. Other Trump loyalists will have to make similar decisions in the days and weeks ahead. And they’ll now have to do so knowing it could lead to an indictment.
There is some reason to doubt they would face charges. For one, the Trump team advanced a rather novel theory of executive privilege with Bannon, who hadn’t worked in the White House for more than three years before the Jan. 6 attack on the Capitol. Bannon’s indictment also notes that not only did he not cooperate, but he ignored the committee altogether until after the deadline to respond. Bannon faces two counts, each carrying a maximum of a year in prison.
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But an indictment is a bell that can’t be un-rung. Those like Meadows might defy the subpoenas in the hope of some kind of accommodation — perhaps allowing them to withhold a certain part of their testimony or documents that have been requested. Bannon’s indictment serves notice that the Jan. 6 committee can threaten to play hardball, with plenty to back it up.
And shortly after Bannon’s indictment, the Jan. 6 committee issued a statement saying it was indeed reserving its options on Meadows.
Bannon and Meadows are among the first against whom this could even be deployed. Theirs were among the first batch of subpoenas, along with White House communications aide Dan Scavino and national security aide Kashyap Patel. In other words, plenty of others will now have very important decisions to make. Another big one will be Trump DOJ official Jeffrey Clark, who spearheaded the effort to get his department to legitimize Trump’s false stolen-election claims.
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In the near term, the question is whether Meadows folds given Bannon’s indictment and whether others will give up the gambit from there. There will be tremendous pressure on Meadows and others not to do so, from Trump and the GOP base, but he’s now stuck between two potentially very bad choices.
Critics decried the delay from Attorney General Merrick Garland and Co. for weeks after the House’s contempt vote on Bannon on Oct. 21. But in some ways, the timing of the indictment perhaps couldn’t have been better for the Jan. 6 committee. The fact that it landed on Friday afternoon meant it came after Meadows indicated he was going down the same path as Bannon.
If Meadows were to reverse himself now, it would surely send a signal to others.