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      House Panel Recommends Contempt Charge for Stephen Bannon

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      The committee scrutinizing the Jan. 6 Capitol riot said the former White House counselor had “multiple roles relevant to this investigation.”The House select committee investigating the Capitol riot voted 9-0 to recommend charging the former White House counselor with criminal contempt of Congress for defying its subpoena.Carlos Bernate for The New York TimesWASHINGTON — One day before a mob of former President Donald J. Trump’s supporters stormed the Capitol, Stephen K. Bannon, a former top adviser to Mr. Trump, made a prediction to listeners of his radio show.“Now we’re on, as they say, the point of attack — the point of attack tomorrow,” Mr. Bannon said on Jan. 5 as he promoted a plan hatched by Mr. Trump and far-right Republican lawmakers to try to overturn President Biden’s victory the next day, when Congress would meet to formalize the election results. “It’s going to kick off. It’s going to be very dramatic.”It is because of comments like that, which foreshadowed the violence that played out during the Capitol riot, that the House committee investigating the assault is interested in questioning Mr. Bannon. But the former counselor to Mr. Trump has refused to cooperate with the inquiry, citing the former president’s claim of executive privilege.The panel voted unanimously on Tuesday to recommend charging Mr. Bannon with criminal contempt of Congress for defying its subpoena, sending the issue to the House. Representative Steny H. Hoyer of Maryland, the majority leader, said members would hold a vote on Thursday. The chamber is expected to approve the move and hand the matter over to the Justice Department for prosecution.“The rule of law remains under attack right now,” said Representative Bennie Thompson, Democrat of Mississippi and the chairman of the committee. “If there’s no accountability for these abuses — if there are different sets of rules for different types of people — then our democracy is in serious trouble.“Mr. Bannon will comply with our investigation,” he added, “or he will face the consequences.”Mr. Thompson said he expected the full House to “quickly” take up the matter.The high-profile confrontation is the first of several that promise to test the boundaries of executive privilege — the presidential prerogative to keep official communications secret — and will determine how far the House committee will be able to go in uncovering the story behind the deadliest attack on the Capitol in two centuries.Mr. Trump has filed his own federal lawsuit that touches on similar questions, suing both the chairman of the investigative committee and the head of the National Archives, the custodian of his presidential records, to block the release of material the panel has requested.Many Democrats fear that case, as well as any the Justice Department might decide to bring against Mr. Bannon, may drag on for months, potentially long enough for Republicans to gain the House majority in 2022 and bury the inquiry — and with it, any hope of revealing fresh information about what precipitated the riot.Members of the committee, which is controlled by Democrats, believe that Mr. Bannon has crucial information about plans to undermine Mr. Biden’s victory, including conversations Mr. Bannon had with Mr. Trump in which he urged the former president to focus his efforts on Jan. 6.In a report recommending the House find Mr. Bannon in contempt, the committee repeatedly cited comments he made on his radio show on Jan. 5 — when Mr. Bannon promised “all hell is going to break loose tomorrow” — as evidence that “he had some foreknowledge about extreme events that would occur the next day.”Investigators wrote that Mr. Bannon appeared to “have had multiple roles relevant to this investigation,” including in constructing the “Stop the Steal” public relations effort to spread the lies of a fraudulent election that motivated the attack, and participating in events from a ‘‘war room” organized at a Washington, D.C., hotel with other allies of Mr. Trump who were seeking to overturn the election.The group included members of the Trump campaign’s legal team, including Rudolph W. Giuliani and John C. Eastman; and prominent proponents of false election fraud claims, including Russell Ramsland Jr. and Boris Epshteyn; as well as Trump ally Roger J. Stone Jr., who left the hotel with members of the Oath Keepers militia group acting as bodyguards, the committee wrote.“It’s not going to happen like you think it’s going to happen,” Mr. Bannon told his audience on Jan. 5. “It’s going to be extraordinarily different. And all I can say is: Strap in.”Robert J. Costello, Mr. Bannon’s lawyer, has informed the committee that his client would not comply, citing Mr. Trump’s directive for his former aides and advisers facing subpoenas to invoke immunity and refrain from turning over documents that might be protected under executive privilege.Late Monday, Mr. Bannon and his lawyer sought to delay the vote, citing Mr. Trump’s lawsuit seeking to block the disclosure of White House files related to his actions and communications surrounding the Jan. 6 Capitol riot. Mr. Thompson quickly denied the request for a delay.The panel was set to charge Mr. Bannon with criminal contempt of Congress for defying its subpoena.Jason Andrew for The New York TimesUnder 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.During the Tuesday committee meeting, Representative Liz Cheney, Republican of Wyoming and the committee’s vice chairwoman, directed a comment to her Republican colleagues, warning them that following Mr. Trump’s lies was a prescription for “national self-destruction.”“Almost all of you know in your hearts that what happened on Jan. 6 was profoundly wrong,” she said. “You know that there is no evidence of widespread election fraud sufficient to overturn the election; you know that the Dominion voting machines were not corrupted by a foreign power. You know those claims are false.”But both Mr. Bannon’s and Mr. Trump’s cases raise novel legal issues. The case against Mr. Bannon is untested 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..css-1xzcza9{list-style-type:disc;padding-inline-start:1em;}.css-3btd0c{font-family:nyt-franklin,helvetica,arial,sans-serif;font-size:1rem;line-height:1.375rem;color:#333;margin-bottom:0.78125rem;}@media (min-width:740px){.css-3btd0c{font-size:1.0625rem;line-height:1.5rem;margin-bottom:0.9375rem;}}.css-3btd0c strong{font-weight:600;}.css-3btd0c em{font-style:italic;}.css-1kpebx{margin:0 auto;font-family:nyt-franklin,helvetica,arial,sans-serif;font-weight:700;font-size:1.125rem;line-height:1.3125rem;color:#121212;}#NYT_BELOW_MAIN_CONTENT_REGION .css-1kpebx{font-family:nyt-cheltenham,georgia,’times new roman’,times,serif;font-weight:700;font-size:1.375rem;line-height:1.625rem;}@media (min-width:740px){#NYT_BELOW_MAIN_CONTENT_REGION 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.css-12vbvwq{border:none;padding:10px 0 0;border-top:2px solid #121212;}.css-12vbvwq[data-truncated] .css-rdoyk0{-webkit-transform:rotate(0deg);-ms-transform:rotate(0deg);transform:rotate(0deg);}.css-12vbvwq[data-truncated] .css-eb027h{max-height:300px;overflow:hidden;-webkit-transition:none;transition:none;}.css-12vbvwq[data-truncated] .css-5gimkt:after{content:’See more’;}.css-12vbvwq[data-truncated] .css-6mllg9{opacity:1;}.css-qjk116{margin:0 auto;overflow:hidden;}.css-qjk116 strong{font-weight:700;}.css-qjk116 em{font-style:italic;}.css-qjk116 a{color:#326891;-webkit-text-decoration:underline;text-decoration:underline;text-underline-offset:1px;-webkit-text-decoration-thickness:1px;text-decoration-thickness:1px;-webkit-text-decoration-color:#326891;text-decoration-color:#326891;}.css-qjk116 a:visited{color:#326891;-webkit-text-decoration-color:#326891;text-decoration-color:#326891;}.css-qjk116 a:hover{-webkit-text-decoration:none;text-decoration:none;}And the Biden administration has refused to assert executive privilege over any of Mr. Trump’s Jan. 6-related material, saying that it would not be in the public interest to keep secret the details of a plot to thwart the peaceful transfer of power.Committee members said they were confident that they would prevail in their push to obtain the information.“The former president’s clear objective is to stop the select committee from getting to the facts about Jan. 6, and his lawsuit is nothing more than an attempt to delay and obstruct our probe,” Mr. Thompson and Ms. Cheney wrote in response to Mr. Trump’s suit. “Precedent and law are on our side.”Claims of executive privilege date back to the very first congressional investigation, in George Washington’s administration, said Douglas L. Kriner, a professor of government at Cornell University and author of the book “Investigating the President: Congressional Checks on Presidential Power.”However, Mr. Bannon’s situation is different from many previous cases in which the privilege was invoked.“It’s hard to imagine how this jeopardizes national security,” Mr. Kriner said of releasing documents from the Trump administration. “It doesn’t involve a current ongoing administration that might be harmed in any way, and it doesn’t even involve the right to frank and open conversation between the president and other advisers within the administration.”The committee vote comes as some Senate Republicans are holding up the confirmation of Mr. Biden’s nominee for the U.S. attorney in Washington, D.C., who would oversee charges against defendants related to the Jan. 6 attack, including any potential charges against Mr. Bannon.Senator Mike Lee, Republican of Utah, has put a hold on the nomination of Matthew M. Graves to lead the office, according to two people with knowledge of the situation.Representative Eleanor Holmes Norton, the District’s nonvoting delegate, said she was confident Mr. Graves would eventually win approval, but that his nomination had become mired in Republican hostility around the effort to investigate the Capitol riot.“It really isn’t related to him at all,” Ms. Norton said. “It’s partisan. It does relate to Jan. 6. It’s a tantrum, really.”Mr. Lee’s office did not respond to a request for comment.Emily Cochrane More

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      Jan. 6 Panel Moves to Recommend Criminal Charges Against Bannon

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      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. More

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      House, Biden Administration Reach Deal Over McGahn Testimony

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      A terse announcement signaled a possible end to a long-running constitutional lawsuit. But former President Donald J. Trump is not a party to the arrangement.WASHINGTON — The Biden administration and House Democrats have reached a tentative deal to allow President Donald J. Trump’s former White House counsel, Donald F. McGahn II, to testify before Congress about Mr. Trump’s efforts to obstruct the Russia inquiry, according to a court filing late Tuesday.The deal appears likely to avert a definitive court precedent that would draw a clear line in an ambiguous areas: the scope and limits of Congress’s constitutional power to compel testimony for its oversight responsibilities, and a president’s constitutional power to keep secret conversations with a White House lawyer.An appeals court had been set to hear arguments on the case next week, but lawyers for the Justice Department, which has been defending Mr. McGahn since 2019 against a House subpoena seeking to compel his testimony, and for the House of Representatives asked the court in a joint letter to drop that plan as mooted by the deal.“The Committee on the Judiciary and the executive branch have reached an agreement in principle on an accommodation and anticipate filing, as soon as possible, a joint motion asking the court to remove this case from the May 19, 2021, oral argument calendar in order to allow the parties to implement the accommodation,” the letter said.What to do about the subpoena case, which President Biden inherited from the Trump administration, has been a rare locus of institutional disagreement among Democrats in the two branches.Lawyers in the Biden White House have been hesitant about establishing a precedent that Republicans might someday use to force them to testify about their own internal matters. House Democrats under Speaker Nancy Pelosi have been determined to push forward after frustration that the Trump administration’s uncompromising approach and litigation strategy ran out the clock, preventing any testimony by Mr. McGahn before the 2020 presidential election.The two sides had been negotiating for several months, leading to delays in the appeals court case. The filing was terse and offered no details about the deal, including what limits, if any, there would be — like whether Mr. McGahn would testify in public and the scope of what lawmakers could ask him to disclose.But the filing also flagged a potential wild card: “Former President Trump, who is not a party to this case, is not a party to the agreement in principle regarding an accommodation,” it said.That absence leaves open the question of whether Mr. Trump could try to intervene to block Mr. McGahn from testifying by asserting executive privilege. An attempt to invoke it by Mr. Trump would raise novel questions about the extent to which a former president may assert the privilege when the incumbent president declines to do so.Should Mr. Trump try to intervene, a rare but limited precedent is a 1977 case, Nixon v. Administrator of General Services, in which the Supreme Court ruled that Richard M. Nixon could assert executive privilege claims over official records from his White House even though he was no longer the president — but it also weighed that assertion against the contrary view of Jimmy Carter, the president at the time.That dispute, however, centered on control of Nixon-era White House documents, not a subpoena for a former White House lawyer’s testimony.The present dispute centers on the House Judiciary Committee’s desire to question Mr. McGahn about matters related to his role as a key witness in the report by the special counsel, Robert S. Mueller III, about efforts by Mr. Trump to obstruct the Russia investigation.After the Justice Department made most of the report public, Democrats on the Judiciary Committee subpoenaed Mr. McGahn to testify. After he refused to appear, on Mr. Trump’s instructions, the committee sued.The case has gone through several rounds of convoluted legal fights over constitutional issues that have lacked definitive precedents because previous disputes had generally been resolved with a negotiated compromise, averting a need for a court ruling.But the lawsuit over the McGahn subpoena is one of an unprecedented number of cases pitting the two branches against each other in court that arose after Democrats took the House in the 2018 midterm elections and Mr. Trump vowed to stonewall “all” subpoenas.First, the Justice Department under Mr. Trump had argued that Mr. McGahn was “absolutely immune” from any compelled appearance before Congress to testify about his work duties. Last year, the full District of Columbia Circuit rejected that theory.The Justice Department then continued to fight the subpoena on other legal grounds, arguing that Congress had no “cause of action” that authorized it to sue the executive branch. (The executive branch has taken that position under administrations of both parties, and the Biden administration had signaled that it was prepared to keep arguing it.)The apparent resolution of the McGahn subpoena case — unless Mr. Trump disrupts it — is similar to a dispute in 2009, when President Barack Obama took office and inherited a House lawsuit over a subpoena for testimony by President George W. Bush’s former White House counsel Harriet Miers related to the firings of United States attorneys.The Obama administration, a lawyer for the House and a legal representative of Mr. Bush worked out a deal under which Democrats were able to confidentially interview Ms. Miers about the topic, with limits. That accommodation mooted the case, so the District of Columbia Circuit never issued a binding ruling, leaving the legal questions it raised unresolved. More