House hopes to defy history in criminal contempt case against Bannon

“The committee has a tough road ahead of it,” said former House attorney Stan Brand, who in 1982 organized the referral of the then EPO chief to the Justice Department for criminal disregard for Congress. “

Proponents of criminal contempt say that their successful use is measured not by completed criminal prosecutions, but by their ability to get a target to cooperate. For example, Democrats in Congress say the threat of scorn helped bring former Secretary of State Mike Pompeo and former Attorney General William Barr to the negotiating table last year after initially refusing to investigate documents and the House of Representatives separately To provide testimony.

But the persuasion collaboration gets complicated with Bannon, who investigators say Jan. 6 has had vital communications with Trump in the lead up to the Capitol attack. Bannon has made a claim to executive privilege that, no matter how weak, is likely to force the committee into potentially years of litigation – which, in turn, would be intertwined with Trump’s own lawsuit aimed at suppressing the authority of the selected panel. And Bannon has shown no willingness to deal with the panel until these legal issues are resolved.

“There is no real way to resolve this in a dispute within the timeline the committee is operating on,” said Lisa Kern Griffin, a criminal law expert at Duke University.

Once the House of Representatives despises Bannon – a vote scheduled for Thursday according to several Democrats familiar with the discussions – the DOJ will take over. The January 6th committee members unanimously expressed the hope that Attorney General Merrick Garland would share their urgency to hold Bannon accountable for his failure to honor her subpoena.

Biden heightened the Hill Democrats’ excitement when he responded to a reporter’s question on Friday that those who oppose the special committee should be prosecuted. The DOJ quickly issued a statement stressing that law enforcement decisions would be made independently of the White House.

Indeed, despite the left’s excitement over the possible responsibility for Bannon, legal experts say prosecuting scorn is far tougher than it appears.

“At least since the Reagan administration, there has been no successful criminal contempt law enforcement,” said Thomas Spulak, another former House attorney. “While there may be a political bias, there are institutional considerations about the DOJ, including whether Garland wants to be drawn into a continuation of the Trump administration’s subpoena battles.”

The January 6th committee set out its case of criminal contempt for Bannon in a 26-page report released Monday evening, and the panel unanimously voted to despise Bannon in a vote Tuesday evening.

“Mr. Bannon stands alone in his utter disregard for our subpoena. That is not acceptable. No one in this land, no matter how rich or powerful, is above the law. If this opposition is left unsaid, it can encourage others to follow Mr Bannon on the same path, “said Chairman Bennie Thompson (D-Miss.).

“[T]There is no reasonable argument that Mr Bannon’s communications with the President regarding January 6th are the kind of privileged matters, ”the panel wrote in its report. “In addition, the Special Committee is confident that no claim of executive privilege would prohibit Mr. Bannon’s testimony of his direct communication with the President regarding January 6th – because the privilege is restricted and could be overcome.”

Some legal experts who helped Democrats in the House of Representatives argue against the 2014 criminal contempt charge for then-IRS official Lois Lerner said Bannon’s case was so clear-cut it was worth sanctioning him – too if that does not result in them receiving the testimony. look again.

“If there is no response to such behavior, what incentive does one have to obey a lawful order?” Said Sam Buell, a former federal attorney who worked on the government’s case against energy giant Enron.

Griffin, the Duke’s legal expert, stated that the criminal contempt charge could go ahead even if the committee were disbanded on Jan. 6 after the 2022 elections. Even if this move did not provide testimony, it could still send the message that disregarding the subpoenas of Congress has consequences.

The history of contraband in Congress is rife with cases that landed on the DOJ’s doorstep only to be rejected. A Republican-run House of Representatives’ referral against Attorney General Eric Holder was denied in 2012, and in 2008 the DOJ argued on behalf of two Bush White House officials who opposed Congressional demands for information.

Brand was an attorney for the House of Representatives when lawmakers followed up documents and testimony from then EPO chief Anne Gorsuch Burford, mother of Supreme Court Justice Neil Gorsuch. But the DOJ argued against the subpoenas on her behalf. The fight eventually led to her resignation, after which she made a deal with the house.

The most recent convicted and convicted of criminal disregard for Congressional cases occurred in the 1970s when Watergate scandal figures G. Gordon Liddy and Richard Kleindienst were found guilty of refusing to answer Congressional questions. Former CIA director Richard Helms was sentenced to a suspended sentence and $ 2,000 fine in 1977 for procedural misconduct.

Democrats say Bannon’s behavior is particularly bold because he refuses to answer all of the committee’s questions. In fact, he refused to appear at all on his October 14 testimony.

In that regard, his actions are similar to claims made by Trump and George W. Bush White House officials who insisted that they had absolute immunity from subpoenas from Congress and did not even have to appear.

Lawyers say the Supreme Court’s ruling last year on a House request for Trump’s financial records undermined Trump and Bannon’s far-reaching privilege claims. In this case, the judges unanimously rejected Trump’s claim to absolute immunity. However, they have also put in place a complex test for the courts to use in subpoena cases from Congress – one that Trump has already relied on to support his own lawsuit against the Jan. 6 committee.

Democrats claim that Trump’s resignation and the fact that Bannon was just an informal adviser to Trump on Jan. 6 further undermine claims to executive privilege, but the courts have failed to indicate that none of these facts are fatal.

If Bannon were to be indicted under the Malpractice Act, prosecutors would have to prove that Bannon “deliberately” defied Congress. That might be hard to show as he appears to have legal advice from his own attorney and from Trump’s attorneys that he has valid legal arguments against the subpoena. His lawyer said Bannon would comply if a court asked him to.

These mitigating factors could also lead the DOJ to reject charges against him.

“The criminal law requires unequivocal evidence of the elements of the offense, each and every one of them,” said Brand. “You will have some interesting conversations with the US Attorney General. I don’t know in which direction they will go. “

On the other hand, Bannon’s claim to privileges for personal and political activities without reference to Trump appears particularly flimsy. Prosecutors may find Bannon’s refusal to answer these questions so unjustified that it invites charges.

Some experts – and members of Congress itself – have looked at the legal landscape and wondered if it is time for lawmakers to shed their greatest power: the inherent disdain. This procedure enables the House of Representatives to directly arrest and punish recalcitrant witnesses, at least initially by bypassing the judiciary and in their own hands.

Several January 6 committee members noted that there was an inherent disdain on the table, although House attorneys are reluctant to consider due to the extreme conflict it would provoke.

“That hasn’t happened in over 80 years,” said Spulak. “Maybe it’s time to visit again.”

Heather Caygle and Nicholas Wu contributed to this report.