After defying a subpoena from a committee probing the violent Jan. 6 Capitol insurgency, the House is debating on whether to punish Steve Bannon, a longstanding supporter and advisor to former President Donald Trump, in contempt of Congress.
That committee has promised to act quickly and harshly against anyone who refuses to assist with the investigation. However, it will very certainly be left to the Justice Department and the courts to decide what happens next.
Even if the House vote passes, there’s still a lot of doubt about whether Bannon will be prosecuted by the Justice Department, despite Democratic requests.
The decision could determine not just the efficacy of the House inquiry, but also the strength of Congress’ ability to summon witnesses and demand information – elements that Justice officials will undoubtedly consider as they decide whether to proceed.
While the Justice Department has been hesitant to prosecute witnesses found in contempt of Congress in the past, the circumstances are unique, as legislators investigate the deadliest attack on the United States Capitol in two centuries.
To highlight the committee’s unity in holding Bannon responsible, the bill’s Democratic chairman, Mississippi Rep. Bennie Thompson, will lead the discussion alongside Republican Rep. Liz Cheney of Wyoming, one of the committee’s two Republicans – a rare display of cooperation on the House floor.
Despite the possible implications for the institution, most House Republicans are anticipated to vote against the contempt resolution.
If Congress fails to carry out its oversight responsibilities, “the general public will get the message that these subpoenas are a joke,” according to Stephen Saltzburg, a George Washington University law professor and former Justice Department official.
If Attorney General Merrick Garland, a former federal judge who Saltzburg considers “one of the most neutral individuals I know,” doesn’t approve a prosecution, “he’s going to be putting the Constitution in risk,” he added. And it’s just too crucial for him to allow that to happen.”
Democrats are pressing Justice to take the case, claiming that it is a matter of democracy at stake.
“The stakes are huge,” said Jamie Raskin, a member of the panel from Maryland. “Under Article One of the United States Constitution, the Congress of the United States has the right to investigate in order to inform our discussions on how to legislate in the future.” This is all about it.”
Even yet, prosecution is not a foregone conclusion. Garland has focused restoring “the norms” of the agency since taking office following the tumultuous Trump period. He reminded rank-and-file prosecutors on his first day that they should be focused on equal justice and not feel pressured to defend or target the president’s supporters or opponents. He has stated several times that political concerns should not be taken into account while making judgments.
When President Joe Biden told reporters last week that Bannon should be punished for contempt, his deputies retaliated vehemently.
“In all prosecutions, the Department of Justice will make its own independent conclusions based entirely on the facts and the law.” Period. In reaction to the president’s remarks, Garland’s spokesperson, Anthony Coley, stated, “Full stop.”
The panel on Jan. 6 decided Tuesday evening to recommend contempt proceedings against Bannon, citing claims that he communicated with Trump before to the insurgency, supported protests on the day of the insurgency, and forecasted trouble. Members claimed that Bannon was the only witness who had totally ignored his subpoena, despite the fact that more than a dozen others had at least spoken to the panel.
The case will be forwarded to the US attorney’s office in Washington if the whole House agrees to punish Bannon in contempt on Thursday. Prosecutors in that office would next decide whether or not to bring the matter to a grand jury for possible criminal charges. Channing Phillips, an interim US attorney who previously worked in the Obama administration, is in charge of the office. Another lawyer, Matt Graves, has been nominated for the position, but his confirmation by the Senate is still waiting.
“If the House of Representatives certifies a criminal contempt citation, as with all criminal referrals, the Department of Justice will evaluate the matter based on the facts and the law, consistent with the Principles of Federal Prosecution,” said Bill Miller, a spokesman for the US attorney’s office in Washington.
The Justice Department has been hesitant of prosecuting congressional contempt cases in the past, especially when opposing political parties control the White House and the House of Representatives. Following contempt referrals from the Republican-led House, the Justice Department declined to prosecute then-Attorney General Eric Holder and former IRS staffer Lois Lerner during the Obama administration. After former White House counsel Harriet Miers disobeyed a subpoena in a Democratic inquiry into the mass firings of United States attorneys, George W. Bush’s Justice Department declined to prosecute her.
Furthermore, the Justice Department’s Office of Legal Counsel has stated in multiple opinions, including one from the 1980s involving Supreme Court Justice Neil Gorsuch’s mother Anne Gorsuch, who refused to turn over documents in her capacity as administrator of the Environmental Protection Agency, that the Justice Department has discretion on when to prosecute for contempt, even when the House has referred the case.
Still, the Bannon case is unique since Democrats control both Congress and the White House, and the committee is looking into a violent insurgency of Trump supporters who assaulted law police officials, stormed into the Capitol, and disrupted Biden’s win declaration.
Raskin stated, “What we’re talking about is a huge, brutal assault on American democracy.”
Even if the government decides to prosecute, the matter may drag on for years, perhaps stretching the probe into the 2022 election, when Republicans might regain control of the House and put an end to it.
And if they don’t prosecute, the House will most likely go a different path. A legal case brought by the House might take years, but it would compel Bannon and any other witnesses to defend themselves in court.
Another option open to Congress is to try to imprison rebellious witnesses, which is a highly unusual, if not absurd, situation. The method, known as “inherent disdain,” was utilized in the country’s early years but hasn’t been used in almost a century.