On Friday, former presidential adviser Steve Bannon was indicted on two counts of contempt of Congress for violating subpoenas demanding testimony and documents surrounding his knowledge of the events leading up to the Jan. 6 insurrection at the Capitol.
The House Select Committee on the Jan. 6 attack subpoenaed Bannon in September, citing his presence in a Willard Hotel “war room” ahead of the assault and his statements on his podcast the day before in which he said, “all hell is going to break loose tomorrow”:
Last month, the House of Representatives voted to hold Bannon in criminal contempt of Congress for refusing to comply with the subpoenas and to forward the charges to the Department of Justice for prosecution. On Friday, the attorney general acted, securing a grand jury indictment in the U.S. District Court for the District of Columbia.
Bannon had clearly flouted the law by failing to appear for a deposition and produce documents in question. As part of his defense, he made vague assertions of executive privilege to justify his lack of cooperation. But his assertions don’t hold water. First, Bannon was not an executive branch official at the time of the events in question. Second, Trump is no longer president. And third, President Joe Biden has rejected Trump’s privilege claims surrounding Jan. 6 documents and a court has affirmed that decision.
On top of all this, as Friday’s indictment noted, the committee requested documents and testimony that have nothing to do with Bannon’s conversations with Trump and couldn’t possibly be covered by executive privilege, even if an appellate court were to rule that Trump had some colorable privilege claims in this case.
Still, the contempt of Congress statute hasn’t been successfully used in decades. For weeks, it was an open question as to whether Attorney General Merrick Garland would allow his Department of Justice to prosecute the Trump confidant. Garland has been exceedingly cautious in his efforts to depoliticize the Department of Justice following the abuses of the Trump years.
“Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law,” Garland said in a statement. “Today’s charges reflect the department’s steadfast commitment to these principles.”
Bannon’s case goes before Judge Carl J. Nichols, a Trump appointee who has twice ruled against the former president’s interests. Once in a lawsuit by the Dominion voting firm against Trump’s former attorney Rudy Giuliani and again in a case in which Trump sought to block the state of New York from transferring his tax returns to the House of Representatives.
This is easily Garland’s most important move yet to defend the rule of law from Trump-era corruption. His actions lay the groundwork for the Jan. 6 committee to continue to pursue documents and testimony from Trump allies who have for years hid from congressional accountability behind the vague cloak of general executive privilege.
Hiding behind a vague cloud of privilege is not how the Constitution is supposed to work, as both the contempt citation by the House or Representatives and the grand jury indictment note. Instead, witnesses are supposed to cite specific privilege assertions in response to specific questions and around specific documents, which can then be adjudicated on a case-by-case basis.
The effort to stonewall all congressional inquiry by completely refusing to cooperate, which has worked so well for so many years during the Trump administration, may finally have been cracked by Garland.
The indictment also sends a message to the 10 others recently subpoenaed by the committee, as well as previous subpoena recipients. Former White House chief of staff Mark Meadows was threatened with contempt of Congress if he failed to cooperate with the committee for scheduled testimony on Friday. He refused to show up in the end. “Mr. Meadows’s actions today—choosing to defy the law—will force the Select Committee to consider pursuing contempt or other proceedings to enforce the subpoena,” committee Chair Bennie Thompson and Vice Chair Liz Cheney said in response on Friday.
While Meadows’ claim of possible privilege might be more colorable than Bannon, who again wasn’t even an executive branch official at the time in question, news of the indictment should give Meadows (and anyone else toying with not cooperating) pause.
It could take years for Bannon to eventually be prosecuted. If he is convicted, though, he faces a fine of up to $1,000 and between one month and one year in prison for each of the two counts of contempt.