The House select committee investigating the Capitol riot will vote next week to recommend a criminal contempt of Congress charge against Stephen K. Bannon after he defied a subpoena.
WASHINGTON — The chairman of the House inquiry into the Jan. 6 attack on the Capitol said the committee would move next week to recommend that Stephen K. Bannon, a former top adviser to President Donald J. Trump, face criminal contempt charges for refusing to cooperate with its investigation.
The move would escalate what is shaping up to be a major legal battle between the select committee and the former president over access to crucial witnesses and documents that could shed light on what precipitated the assault, when a pro-Trump mob stormed the Capitol and disrupted Congress’s formal count of the votes that confirmed President Biden’s election.
The fight will test how far Congress will be able to go in pressing forward on the investigation in the face of stonewalling by the former president. Should the House ultimately approve the referral, as expected, the Justice Department would decide whether to accept it and pursue a criminal case.
So far, the Biden administration has taken the unusual step of refusing to honor Mr. Trump’s claims of executive privilege, which can shield White House deliberations or documents involving the president from disclosure.
Mr. Bannon informed the panel last week that he would defy a subpoena, in accordance with a directive from Mr. Trump, who has told former aides and advisers that they should not cooperate because the information requested is privileged.
“Mr. Bannon has declined to cooperate with the select committee and is instead hiding behind the former president’s insufficient, blanket and vague statements regarding privileges he has purported to invoke,” Representative Bennie Thompson, Democrat of Mississippi and the chairman of the committee, said in a statement.
The committee, which is controlled by Democrats, will consider the referral on Tuesday and is all but certain to agree to it. That would send the criminal contempt citation to the full House, where Democrats have the votes to approve it. The matter would then be sent to the Justice Department with a recommendation that officials pursue a legal case against Mr. Bannon.
The cumbersome procedure reflects a challenging reality that Democrats are grappling with as they delve deeper into the Jan. 6 inquiry. Congress is a legislative body, not a law enforcement entity, and its ability to compel cooperation and punish wrongdoing on its own is inherently limited. Its investigative tools are only as powerful as the courts decide, and the process of waging legal fights to secure crucial information and witnesses is likely to be a prolonged one.
Robert J. Costello, a lawyer for Mr. Bannon, said in a letter to the committee on Wednesday that his client would not produce documents or testimony “until such time as you reach an agreement with President Trump” on claims of executive privilege “or receive a court ruling.”
The case of Mr. Bannon is particularly tricky because he has not been an executive branch official since he left the White House in 2017, and any conversations he may have had with Mr. Trump pertaining to Jan. 6 are likely to have fallen outside the former president’s official duties.
No court has definitively said whether conversations with private citizens are covered by executive privilege, which is generally extended in relation to conversations or documents that pertain to presidential duties.
“Privilege for a private citizen, who was potentially talking about things outside of the president’s official duties, has never been tested in court,” said Jonathan D. Shaub, a law professor at the University of Kentucky who worked at the Justice Department’s Office of Legal Counsel.
Even as it moves aggressively against Mr. Bannon, the panel has taken a different approach to two other advisers to Mr. Trump who have so far declined to comply with its subpoenas but have not stonewalled the inquiry entirely.
Mark Meadows, the former White House chief of staff, and Kash Patel, a former Pentagon chief of staff, were also summoned to sit for depositions this week, but they are not yet facing contempt citations for failing to do so.
The committee said it was in communication with Mr. Meadows and Mr. Patel, and a person with knowledge of those talks said that lawmakers were likely to grant them a delay before testifying. Dan Scavino Jr., a former White House deputy chief of staff under Mr. Trump, was served with his subpoena last week.
For years while Mr. Trump was president, administration officials refused to comply with congressional subpoenas, thumbing their noses at Democratic lawmakers on matters from election interference to census questions. Democrats, in turn, opted not to try to press their claims in court, concluding that the process would be too time-consuming to be effective, particularly in the case of Mr. Trump’s impeachment.
Now that he has left office, Democrats and Mr. Biden’s Justice Department must decide how aggressive they want to be in waging legal battles to insist on congressional prerogatives. That includes the question of whether to try to compel cooperation in the investigation from Mr. Trump himself, which Mr. Thompson has repeatedly said was possible, but which raises legal and logistical challenges that many Democrats privately say make it unlikely.
Under federal law, any person summoned as a congressional witness who refuses to comply can face a misdemeanor charge that carries a fine of $100 to $100,000 and a jail sentence of one month to one year.
But the Justice Department has generally refrained from prosecuting executive branch officials when they have refused to comply with subpoenas, and Congress has voted to hold them in contempt, according to a 2019 Congressional Research Service report.
Justice Department legal opinions from 1984 and 2008 say that the department will not prosecute officials for complying with a president’s formal assertion of privilege over conversations or documents.
In 2015, the Justice Department under President Barack Obama said it would not seek criminal contempt charges against Lois Lerner, a former I.R.S. official; and in 2019, the department under Mr. Trump made a similar decision, rebuffing Congress on behalf of Attorney General William P. Barr and Commerce Secretary Wilbur Ross.
The last person charged with criminal contempt of Congress, Rita M. Lavelle, a former federal environmental official under President Ronald Reagan, was found not guilty in 1983 of failing to appear at a congressional subcommittee hearing. She was later sentenced to jail for lying to Congress.
Jeffrey S. Robbins, a former federal prosecutor and a partner at the law firm Saul Ewing Arnstein & Lehr, said under different circumstances, the committee might face an uphill battle enforcing the subpoena: if the Justice Department were still under Mr. Trump, Congress were in Republican hands, or there were a reasonable argument — such as protecting national security — for invoking executive privilege. In this case, Mr. Robbins said, none of those circumstances existed.
“It’s open contempt of a subpoena without an apparent basis,” said Mr. Robbins, who teaches a course on congressional investigations at Brown University. He called the invocation of executive privilege “patently bogus,” adding, “It’s difficult to imagine it will not be referred for prosecution.”
Once Congress votes to hold Mr. Bannon in contempt, the next step would be to refer the matter to the U.S. attorney in Washington. If the White House determines that no claim of executive privilege applies, the U.S. attorney’s office would then decide whether to bring the case before a grand jury, in consultation with top Justice Department officials.
But if Mr. Bannon were to sue over the issue, the Justice Department would most likely follow past practice and wait for the courts to resolve the lawsuit before bringing the contempt charge before a grand jury, Mr. Shaub said.
In letters transmitting its subpoenas to Mr. Bannon and the three former Trump administration officials, the committee said it was seeking information about the president’s actions in the run-up to and during the riot.
Mr. Bannon reportedly communicated with Mr. Trump on Dec. 30 and urged him to focus his efforts on Jan. 6, the committee said. He was also present at a meeting at the Willard Hotel in Washington the day before the violence, when plans were discussed to try to overturn the results of the election the next day, the committee stated. Mr. Bannon was quoted as saying, “All hell is going to break loose tomorrow.”
On Wednesday, the committee also issued a subpoena to Jeffrey Clark, a former Justice Department official who was involved in Mr. Trump’s efforts to overturn the election. The committee’s action came the same day it heard lengthy closed-door testimony from Jeffrey A. Rosen, the former acting attorney general, who has testified publicly and privately about the final days of the Trump administration, when the former president was pressing top officials to use the Justice Department to advance false claims of election fraud.
In private testimony before the Senate Judiciary Committee, Mr. Rosen said that Mr. Clark had told him that Mr. Trump was getting ready to fire Mr. Rosen and endorse Mr. Clark’s strategy of pursuing conspiracy theories about the hacking of voting booths and fraud.
“Well, I don’t get to be fired by someone who works for me,” Mr. Rosen said he told Mr. Clark.
Source: Elections - nytimes.com
