Pursuing criminal contempt charges against Stephen K. Bannon is a terrible way for the House committee investigating the Jan. 6 insurrection to obtain the Trump aide’s testimony. It is also pretty much the only available option — and one that Attorney General Merrick Garland should quickly pursue.
It’s predictable because, well, Bannon. He is a professional provocateur. Were it not for Donald Trump’s 11th-hour pardon, he would be facing criminal trial for allegedly defrauding credulous donors who believed they were helping build a border wall instead of lining Bannon’s pockets.
It’s infuriating because Bannon clearly has evidence relevant to the committee’s investigation; because his claim that he somehow isn’t obliged even to show up in response to a subpoena is so lawless; and because his assertion that his testimony is absolutely protected by executive privilege so ludicrous.
Most of all, it’s dangerous, because if this intransigence is allowed to stand, it will signal the end of effective congressional oversight — if we’re not there already.
Criminal contempt is a terrible way for the committee to proceed because it’s not actually designed to obtain Bannon’s testimony. A misdemeanor punishable by up to a year in prison and a fine of $100,000, contempt is supposed to punish Bannon for his flagrant disregard of the congressional subpoena, not force him to comply.
The way — in theory — to get Bannon to turn over documents and testify is for the House to pursue a different avenue: having the House go to court to have its subpoena enforced. But we’ve seen that play before, and it is interminable. It took more than two years for the House Judiciary Committee to obtain testimony from former Trump White House counsel Donald McGahn, and that was the fast track. The battle between the House and the Justice Department over the Obama-era Fast and Furious gun sting operation took seven years to resolve.
Under the current circumstances, with the Jan. 6 committee operating under time pressure, that’s just too slow.
Criminal contempt could be pursued quickly — if the Department of Justice agrees to act. Before Thursday’s House vote on Bannon, Congress has made criminal contempt referrals — they go to the U.S. attorney for the District of Columbia — six times in recent years.
All six times, the White House and the House were controlled by opposing parties. It was fanciful to imagine that the Justice Department would prosecute an official or former official of the same administration. And so, in every case, the Justice Department declined to proceed with the prosecution.
This time is different. This time, Bannon should be prosecuted.
President Biden was wrong to say that, as he acknowledged Thursday night. The president — any president — should stay far away from telling the Justice Department whom to indict for fear of making a prosecution look like a political vendetta.
But failing to prosecute Bannon would make a mockery of congressional oversight, and without implicating some of the legitimate concerns that argue against enforcing the congressional contempt power in other circumstances.
Executive privilege doesn’t work the way Bannon seems to imagine. For one thing, it has to be asserted — by a president. Biden has waived any privilege claim given the importance of the Jan. 6 inquiry. Trump, who may or may not have a legitimate claim as a former president, hasn’t formally invoked it before the committee.
And even if some privilege somehow applies to Bannon, who wasn’t even a government official at the time in question, it wouldn’t be absolute, barring testimony about every subject. The Supreme Court has said: The privilege applies to conversations limited to communications “in performance of (a President’s) responsibilities of his office” and “in the process of shaping policies and making decisions.” Unless fomenting insurrection is part of a president’s duties, it’s hard to see what’s privileged here. This was not policymaking; it was democracy destruction.
The contempt-of-Congress statute provides that once a contempt citation is passed by either body, it goes to the U.S. attorney, “whose duty it shall be to bring the matter before the grand jury for its action.” The Justice Department, in a 1984 opinion by the Office of Legal Counsel, concluded that “shall” didn’t mean “must” — at least in the case of “an Executive Branch official who, on the orders of the President, asserts the President’s claim of executive privilege.” But that’s not the situation here.
Why is Bannon’s testimony necessary? Bannon prodded Trump to “focus on January 6th,” according to The Post’s Bob Woodward and Robert Costa, and was in frequent contact with the White House in the lead-up to that day. “All hell is going to break loose tomorrow,” Bannon said on his podcast on Jan. 5. On Jan. 6, Bannon monitored the uprising from a “war room” at the Willard Hotel. What did Bannon know about what was going to happen Jan. 6, and when did he know it? These are legitimate questions to which the committee deserves answers.
