House to Vote on Seeking Prosecution of Bannon for Contempt
(Bloomberg) -- The Democratic-controlled House is poised to cite former Trump adviser Steve Bannon with criminal contempt of Congress, an action that will throw a politically fraught decision into the lap of Attorney General Merrick Garland.
The House vote Thursday afternoon is among major decisions facing Garland, who testified in the morning before the House Judiciary Committee. If passed as expected, the contempt citation -- stemming from an investigation into the Jan. 6 riot at the U.S. Capitol by supporters of former President Donald Trump -- would be referred to the U.S. attorney for the District of Columbia, who would decide along with Garland whether to prosecute.
Bannon has, at Trump’s direction, refused to testify or provide documents to the select committee conducting the probe. His lawyer, Robert Costello, has argued that Bannon isn’t actively defying the Jan. 6 panel subpoena -- but rather is seeking a clarification of the law because Trump’s lawyer has suggested that executive privilege is at issue.
But the select committee has rejected that argument. The resolution recommending the House hold Bannon in contempt says Trump has yet to make a formal assertion of privilege and that Bannon wouldn’t qualify in any event because he wasn’t a government employee or a Trump adviser during the period under investigation.
“Witnesses cannot simply ignore congressional subpoenas when they prefer not to attend,” Representative Liz Cheney, a Wyoming Republican and vice chair of the Jan. 6 panel, said Wednesday during a meeting to set the rules for the House floor vote on holding Bannon in contempt. “Criminal contempt is the appropriate response in these circumstances.”
A criminal referral of Bannon’s case represents a major test for Garland, who has pledged to restore independence and credibility to the Justice Department.
“We strengthened our policy governing communications between the Justice Department and the White House, and the White House did the same,” Garland said in his prepared opening statement to the committee. “That policy is designed to protect the department’s criminal and civil law enforcement decisions and its legal judgments from partisan or other inappropriate influence.”
The Bannon case -- and the Justice Department’s pursuit of those behind the Jan. 6 assault -- hung over Garland’s first appearance before the Judiciary Committee in what had been scheduled as a routine oversight hearing.
“The violence we witnessed that day was an intolerable assault, not only on the Capitol and the brave law enforcement personnel who sought to protect it, but also on a fundamental element of our democracy: the peaceful transfer of power,” Garland said in his prepared testimony.
“In response to that attack, the Justice Department has undertaken an extraordinary effort to ensure that the perpetrators of criminal acts on January 6 are held accountable,” he said.
Representative Jerrold Nadler of New York, the House panel’s Democratic chairman, said in his opening statement that it’s Garland’s “responsibility to help the country understand and reckon with the violence and the lawlessness of the last administration, while maintaining the department’s prosecutorial independence.”
But Trump’s Republican allies on the Judiciary committee turned the tables by accusing Democrats of politicizing the Justice Department.
Representative Jim Jordan of Ohio, the top Republican on the committee, said the Justice Department set up a “snitch line” for complaints about conservative parents who “object to some racist, hate-filled curriculum” in schools.
“Every single liberty we enjoy in the First Amendment has been assaulted in the last year” under coronavirus restrictions, Jordan added.
The tensions over how to handle defiance from Bannon and potentially other Jan. 6 witnesses was on full display last week when President Joe Biden said any witness who refuses to cooperate with the congressional investigation should be held accountable.
Justice Department spokesman Anthony Coley issued a curt statement in response, saying “the Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law.”
Trump has instructed his allies not to participate in the probe and threatened to seek a court order allowing him to exert executive privilege to block investigators from accessing documents or testimony from advisers related to the incident, in which his supporters violently swarmed the Capitol and sought to disrupt Congress from counting electoral college votes.
While many previous congressional contempt citations have gone nowhere because presidential administrations have been unwilling to prosecute current or former officials, a report released Tuesday by the Congressional Research Service suggests this case could be different.
“Bannon appears to be asserting an executive privilege defense to the subpoena that the Biden administration reportedly does not support,” the CRS report says. “Bannon could face a more credible threat of criminal prosecution than was the case in other recent criminal contempt of Congress referrals.”
©2021 Bloomberg L.P.