(Headline USA) The House is voting Thursday on whether to hold Steve Bannon, a longtime ally and aide to former President Donald Trump, in contempt of Congress after he defied a subpoena from the partisan Jan. 6 commission.
Democrats have vowed to move swiftly and forcefully to punish anyone who won’t cooperate with the probe, which Trump has dismissed as a witch hunt and said that its irrelevant subpoenas are a fishing expedition as they fear a 2024 run from the former president.
But it’s likely up to the Justice Department, and the courts, to determine what happens next.
If the House vote succeeds, as is expected, there’s still considerable uncertainty about whether the Justice Department will prosecute Bannon, despite Democratic demands for action.
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While Attorney General Merrick Garland has undermined the norms of the department by pursuing several partisan agenda items with no legal basis, his decision to pursue the unprecedented contempt charge might easily lead to backlash on Biden officials should Republicans retake Congress, as is widely expected.
The outcome could determine not only the effectiveness of the House investigation but also the strength of Congress’ power to call witnesses and demand information—factors that will certainly be weighing on Justice officials as they determine whether to move forward.
To emphasize the committee’s unity in holding Bannon accountable, the panel’s Democratic chairman, Mississippi Rep. Bennie Thompson, will lead the debate on the bill along with Republican Rep. Liz Cheney, R-Wyo.
Trump has been particularly brutal and critical of Cheney, whom he has noted in recent statements is polling in the 20s in her home state after being censured by state Republicans and stripped of her leadership position within the House Republican caucus.
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Thompson has likewise faced derision from those who question his true intentions and sudden support for law and order. The son of a Mississippi police officer who was killed by a black separatist group recently called out his hypocrisy.
Most House Republicans are expected to vote against the contempt measure. Whether any Democrats join them could be a test for how the party might fare in the 2022 midterm election as its failed policies have eroded any mandate it claimed following the disputed 2020 election.
But the credibility and faith in Congress as a whole is also very much on the line with partisan battle lines drawn like never before.
If Congress can’t perform its oversight job, the message sent to “the general public is these subpoenas are a joke,” said Stephen Saltzburg, a George Washington University law professor and former Justice Department official.
He said if Garland doesn’t authorize a prosecution, “he’s going to be letting the Constitution, it seems to me, be placed in jeopardy. And it’s way too important for him to let that happen,” Saltzburg claimed.
Democrats—who already failed twice to convict Trump during partisan impeachment hearings, including once in the immediate aftermath of the Jan. 6 uprising—are pressuring Justice to take the case, arguing hyperbolically, as usual, that nothing less than democracy is on the line.
“The stakes are enormous,” said Maryland Rep. Jamie Raskin, a member of the panel. “The Congress of the United States under Article One has the power to investigate in order to inform our deliberations about how to legislate going forward. That’s what this is about.”
But Garland’s deputies pushed back—hard—when President Joe Biden suggested to reporters last week that Bannon should be prosecuted for contempt.
“The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop,” Garland’s spokesman, Anthony Coley, said Friday, in response to the president’s comments.
The Jan. 6 panel voted Tuesday evening to recommend the contempt charges against Bannon, citing reports that he spoke with Trump before the insurrection, promoted the protests that day and predicted there would be unrest.
Members said Bannon was alone in completely defying his subpoena, while more than a dozen other witnesses were at least speaking to the panel.
Assuming the full House votes to hold Bannon in contempt Thursday, the matter will be referred to the U.S. attorney’s office in Washington. It would then be up to prosecutors in that office whether to present the case to a grand jury for possible criminal charges. The office is run by Channing Phillips, an acting U.S. attorney who had previously served in the position in the Obama administration. Another attorney, Matt Graves, has been nominated for the post, but his nomination is pending in the Senate.
“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 spokesman for the U.S. attorney’s office in Washington.
The Justice Department has in the past been wary of prosecuting congressional contempt cases, especially when the White House and the House of Representatives are controlled by opposing political parties.
During the Obama administration the department declined to prosecute then-Attorney General Eric Holder and former IRS official Lois Lerner following contempt referrals from the Republican-led House.
And George W. Bush’s Justice Department declined to charge Harriet Miers after the former White House counsel defied a subpoena in a Democratic investigation into the mass firings of United States attorneys.
In addition, the Justice Department’s Office of Legal Counsel has said in multiple opinions—including one from the 1980s involving Supreme Court Justice Neil Gorsuch’s mother Anne Gorsuch, who refused to turn over documents in her capacity as administrator of the Environmental Protection Agency—that the Justice Department has discretion on when to prosecute for contempt, even when receiving a referral from the House.
Still, the Bannon case is different, as Democrats hold both Congress and the White House — and because the committee is investigating Trump’s supporters who, they claim, interrupted the certification of Biden’s victory.
“What we’re talking about is this massive, violent assault on American democracy,” Raskin said.
Even if the department does decide to prosecute, the case could take years to play out—potentially pushing past the 2022 election when Republicans could win control of the House and end the investigation.
And if they don’t prosecute, then the House will likely find another route. A House-authorized civil lawsuit could also take years but force Bannon and any other witnesses to defend themselves in court.
Another option available to Congress would be to try to imprison defiant witnesses—an unlikely, if not outlandish, scenario. Called “inherent contempt,” the process was used in the country’s early years but hasn’t been employed in almost a century.
Adapted from reporting by the Associated Press