Lawmakers on the House select committee investigating the Jan. 6 attack on the Capitol are poised to vote in favor of holding Stephen K. Bannon in contempt on Tuesday. The seven Democrats and two Republicans tasked with investigating the insurrection will soon vote on the resolution recommending that the House find Bannon in criminal contempt of Congress for refusal to comply with a subpoena issued by the committee.
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The vote could be taken up by the full House as early as this week. The matter would then be referred to the Justice Department. Contempt of Congress is a misdemeanor criminal offense that can result in up to one year in prison and a fine of up to $100,000.
The Justice Department did not provide comment on Tuesday on whether it plans to prosecute the case but department spokesman Anthony Coley stressed the DOJ’s independence in a statement last week after President Biden told reporters that he hoped the Department would decide to prosecute Bannon after receiving the referral.
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The last person charged with contempt of Congress was in 1983 under the Reagan administration. Former Environmental Protection Agency official Rita M. Lavelle was held in contempt by the House and was indicted by a federal grand jury for refusing to comply with a subpoena from a House subcommittee investigating her management regarding the EPA’s hazardous waste cleanup fund.
Jonathan C. Su, a deputy counsel to the president, issued a letter to Bannon on Monday, notifying Bannon’s lawyer, Robert Costello, that the White House Counsel’s Office was “not aware of any basis for your client’s refusal to appear for a deposition.”
“As you are aware, Mr. Bannon’s tenure as a White House employee ended in 2017,” Su wrote in the letter obtained by The Washington Post. “To the extent any privileges could apply to Mr. Bannon’s conversations with the former President or White House staff after the conclusion of his tenure, President Biden has already determined that an assertion of executive privilege is not in the public interest, and therefore is not justified, with respect to certain subjects within the purview of the Select Committee.”
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Costello declined to provide comment.
In earlier letters exchanged with Committee Chairman Bennie G. Thompson (D-Miss.), Costello argued that Bannon can’t respond to the subpoena because of executive privilege asserted by former president Donald Trump, and asked the committee on Monday for a week-long delay.
Thompson declined to grant the extension to Bannon and rejected his arguments for failing to cooperate with the subpoena, underscoring the committee’s desire to move quickly to resolve any attempts to delay the investigation.
Even if the U.S. attorney in consultation with DOJ officials decides to prosecute Bannon and officials who do defy committee subpoenas, it’s not guaranteed that the criminal referral process will move quickly.
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“It still may take a serious amount of time,” said Abbe Lowell, a top D.C. lawyer whose practice includes representing people in front of Congress and who is teaching a course on congressional oversight and investigation at Columbia Law School. “Maybe this is the way it has to be, but there’s no really rapid way to cause somebody to testify and produce documents to Congress when they don’t want to in a very rapid, efficient system since the days that the sergeant-at-arms went and arrested people.”
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Legal experts have cast doubt on the merit of Bannon’s defense of his defiance of the subpoena and believe that the president’s immunity from congressional subpoena only extends to his closest White House advisers — and not private citizens like Bannon.
Trump’s sweeping claims of executive privilege to shield his activities and his aides and allies from congressional scrutiny have also been questioned by constitutional experts and lawyers.
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Trump filed a 26-page lawsuit on Monday to block the House committee from receiving records for its inquiry from the National Archives, arguing that the committee’s document request serves no legislative purpose, that it undermines Trump’s executive privilege, and that the committee has provided Trump’s legal team with insufficient time to review the records requests.
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Former George W. Bush administration official John Yoo said that Trump’s legal team would be well served to home in on the outstanding questions about whether a sitting president is the one who controls executive privilege for past presidents or if a past president can claim it, too.
“If you get divorced and remarried, the new spouse doesn’t suddenly hold spousal privilege to everything we said — the old spouse does,” Yoo argued. “Changing a person doesn’t destroy the privilege … If Trump’s lawyers were smart, that’s the kind of argument they would make but effectively it’s going to be hard to win because Biden could just release the documents anyways.”
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U.S. District Judge Tanya Chutkan was assigned on Tuesday to hear Trump’s lawsuit to block release of the records. She recently sentenced a defendant convicted of a misdemeanor in the Jan. 6 Capitol riots to 45 days in jail against prosecutors’ recommendation of home confinement, saying, “There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home.”
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Chutkan, a 2014 appointee of Barack Obama, is a former D.C. public defender and white-collar criminal defense attorney with the Boies Schiller Flexner law firm.
Among noteworthy cases, Chutkan presided over the prosecution of Maria Butina, the Russian graduate student convicted and later deported for conspiring to infiltrate the National Rifle Association as an agent of the Russian government without registering with the Justice Department; blocked the U.S. government’s effort transfer to a third country an American citizen held seven months without charges by the U.S. military in Iraq; and ordered a halt to the Trump administration’s 2019 effort to resume federal executions.