The House Votes Tonight on Steve Bannon’s Contempt Charge. Here Are Some Things To Know.
This evening, the House will take the next step in holding former White House advisor Steve Bannon in contempt for refusing to produce documents and to appear before the January 6 Committee. Bannon is seen as a key figure in the investigation because communications between him and Trump on December 30, along with a suspicious meeting at the Willard Hotel he attended on January 5 before the insurrection, may tie Trump to having advance knowledge of what was about to go down.
Given the presumed importance of Bannon and his headline-making, open defiance of the Committee, it’s a good time to step back and take stock of where we are, what matters at this time, and what is likely to happen (or not happen) following the vote.
The House Vote Will Fall Largely Upon Party Lines
If the proceedings within the House Rules Committee yesterday are any indication, the “yes” vote to refer Bannon to the Justice Department for prosecution will comprise all Democrats plus the two lone GOP January 6 Committee members, Reps. Liz Cheney (R-WY) and Adam Kinzinger (R-NY). In short, it will be nearly entirely partisan. And that’s by design from the GOP.
The vote in the Rules Committee was 9-4 in favor, but the Republican witnesses previewed, through testimony by enfants terribles Reps. Matt Gaetz (R-FL) and Jim Jordan (R-FL), how things are likely to go tonight. Jordan claimed the January 6 Committee’s actions “are a complete assault upon Americans’ liberties” while Gaetz ranted that Democrats “need January 6th so bad” because they “have no other legislation or solutions for the country.” (This is untrue, of course.) Gaetz got into a shouting match with Rep. Jamie Raskin (D-MD) when pressed to accept that Joe Biden won the 2020 election legitimately. When Gaetz criticized the handling of the 61 election cases, in which judges including those appointed by Trump rejected his claims of election fraud, Raskin quipped, “That might work on Steve Bannon’s podcast, but that’s not going to work in the Rules Committee of the United States House of Representatives.”
Theatrics aside, because Republican leadership has recommended its members in the House oppose the resolution of criminal contempt for Bannon, the outcome is more or less preordained: Expect a party-line vote with likely only two GOP defectors—those who actually sit on the January 6 Committee in defiance of their party’s wishes.
Bannon Is the Only One of 19 Witnesses Who Is Refusing to Cooperate
Lost in the noise around Steve Bannon is the more interesting fact that all of the other witnesses have begun producing documents or are in current talks with the Committee on how to comply with the subpoena while not violating any claim of executive privilege by the former president.
The January 6 Committee is busily collecting “thousands of pages of records” and “conducting interviews on a steady basis,” according to Chair Bennie Thompson (D-MS). The list of cooperating witnesses includes many who were involved in the planning and funding of the rally that preceded the riot and insurrection. One of the key questions the Committee wishes to explore is whether anyone—and if so, who—knew that a physical assault on the Capitol was planned. Steve Bannon’s statements on his podcast certainly suggest he was aware, but to build a case it’s best to have many corroborating sources and pieces of physical evidence, such as emails and phone records.
Here is a list of those subpoenaed and their statuses.
Note that testimony dates may be noticed for a particular day but are usually subject to amendment as the schedules of the witnesses are accommodated and the terms of their testimony (including what will and will not be testified to) are hashed out.
The Justice Department Will Deliberate Carefully on Whether to Prosecute
The decision whether or not to move forward with criminal contempt of Congress charges lies with the Justice Department, specifically with the U.S. Attorney for Washington, D.C., though it’s pretty clear Merrick Garland will have input given the high stakes. There’s already a bit of friction between the White House and the Department over whose call this is; after Biden intimated that he hoped the Justice Department would pursue criminal charges, a spokesperson for the Department, Anthony Coley, pushed back testily, retorting that “the Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop.”
Other statements since have been more measured. “If the House of Representatives certifies a criminal contempt citation, the Department of Justice, as with all criminal referrals, will evaluate the matter based on the facts and the law, consistent with the Principles of Federal Prosecution,” said Bill Miller, a spokesperson for the U.S. attorney’s office in D.C.
So, what are those principles of federal prosecution, at least as applied here? Historically, the Department actually has been reluctant to prosecute members or former members of the Executive Branch when the partisan nature of Congress appears to be what is driving the contempt charge. That happened twice during the Obama years when a GOP-controlled Congress voted to hold former Attorney General Eric Holder and former IRS officer Lois Lerner in contempt but the Justice Department declined. But in those cases, the officials had already provided voluminous documents to Congress and had appeared to testify, which is a far cry from what Bannon has done with his outright refusal.
Nor is it a slam dunk that Bannon is exposed simply because he was not actually an official with the administration at the time he allegedly had certain communications with Trump, though the weight of actual judicial authority still seems to favor a limited privilege. Back in 2007, the Justice Department advised President Bush that “executive privilege can protect advice that individuals outside the executive branch give the president.” Trump later used that argument to prevent former advisor Cory Lewandowski and former Kansas Secretary of State Kris Kobach from testifying. Then White House Counsel Pat Cipollone backed him up on this, saying, “A President must frequently consult with individuals outside of the Executive Branch, and it is well settled that those communications are also subject to protection.”
This actually isn’t well settled at all; Cipollone’s opinion was more of a convenient declaration at the time. A Congressional Research Service (CRS) memo advising lawmakers on the scope of their powers disputed this idea specifically, noting that “White House assertions of executive privilege for presidential communications have historically been confined to individuals who were executive branch employees when those communications occurred.” That would exclude Bannon if true.
The Justice Department will have to take all this into account, as well as the fact that many of Bannon’s documents and much of his testimony isn’t related to the former president at all and therefore carries no possible privilege. In addition, they will have to consider the fact that the Biden White House (which presumptively holds the privilege) has expressly waived executive privilege over Bannon’s communications. It even sent a letter to Bannon counsel to this effect: “President Biden’s determination that an assertion of privilege is not justified with respect to these subjects applies to your client’s deposition testimony and to any documents your client may possess concerning either subject,” wrote Deputy Counsel Jonathan Su to Bannon’s attorney. He added that “at this point we are not aware of any basis for your client’s refusal to appear for a deposition.”
Note that even if the Justice Department moves ahead with a criminal prosecution, which is not a guaranteed outcome by any measure, this may still take some time. It normally would refer the matter to a grand jury, which will take time to empanel. Then after presentation of the case, the grand jury would in all likelihood issue a true bill to indict. After that—and only after that—we might finally get to see Bannon do the perp walk again.