House prepares to deploy contempt against Bannon — but it won’t be easy

“The committee has a tough road to hoe,” said former House counsel Stan Brand, who helped orchestrate the referral of the then-EPA chief to the Justice Department for criminal contempt of Congress in 1982. “You have no clear, easy path to compliance.”

Advocates for criminal contempt say that its successful use isn’t measured in completed prosecutions, but rather in its ability to persuade a target to cooperate. For example, congressional Democrats say the threat of contempt helped bring former Secretary of State Mike Pompeo and former Attorney General William Barr to the negotiating table last year, after they initially refused to provide documents and testimony to the House in separate investigations.

But coaxing cooperation will get complicated with Bannon, whom Jan. 6 investigators say had crucial communications with Trump in the run-up to the attack on the Capitol. Bannon has lodged a claim of executive privilege that, no matter how flimsy, is likely to force the committee into possibly yearslong litigation — that itself would become intertwined with Trump’s own lawsuit aimed at quashing the select panel’s authority. And Bannon indicated no willingness to deal with the panel until those legal matters are sorted out.

“There’s not really any way to get this resolved in litigation on the timeline the committee is operating on,” said Lisa Kern Griffin, a Duke University criminal law expert.

Once the House holds Bannon in contempt — a vote aides say would likely occur before Thanksgiving — DOJ will take over. Jan. 6 committee members have uniformly expressed hope that Attorney General Merrick Garland will share their urgency in holding Bannon accountable for his defiance of their subpoena.

Biden added to Hill Democrats’ excitement when he responded to a reporter’s question Friday saying those who defy the select committee should be prosecuted. DOJ quickly issued a statement emphasizing that prosecution decisions would be made independently of the White House.

And, indeed, despite the left’s elation at potential accountability for Bannon, legal experts say prosecution for contempt is a much tougher call than it appears.

“Since at least the Reagan Administration, there has not been a successful prosecution under the criminal contempt statute,” said Thomas Spulak, another former House counsel. “Although there may be political alignment, there are institutional considerations involving DOJ, one of which is whether Garland wants to be drawn into a continuation of the Trump Administration subpoena battles.”

The Jan. 6 committee laid out its case for criminal contempt of Bannon in a 26-page report issued Monday night.

“[T]here is no reasonable argument that Mr. Bannon’s communications with the President regarding January 6th are the type of matters on which privilege can be asserted,” the panel wrote. “Also, the Select Committee is confident that no executive privilege assertion would bar Mr. Bannon’s testimony regarding his communications directly with the President regarding January 6th — because the privilege is qualified and could be overcome.”

Some legal experts who helped House Democrats argue against criminal contempt charges for then-IRS official Lois Lerner in 2014 said Bannon’s case is so clear-cut that it’s worth bringing sanctions against him — even if it doesn’t result in getting the testimony they’re seeking.

“If such conduct is not responded to, then what incentive does anyone have ever to obey a lawful order?” said Sam Buell, a former federal prosecutor who worked on the government’s case against energy giant Enron.

Griffin, the Duke legal expert, noted that criminal contempt charges could move forward even if the Jan. 6 committee disbands after the 2022 elections. Though that move wouldn’t yield testimony, it could still send a message that defying congressional subpoenas has consequences.

The history of congressional contempt proceedings is replete with cases that landed on DOJ’’s doorstep only to be rejected. A Republican-led House’s contempt referral against Attorney General Eric Holder got refused in 2012, and in 2008 DOJ argued on behalf of two Bush White House officials fighting a congressional demand for information.

Brand was House counsel when lawmakers pursued documents and testimony from then-EPA head Anne Gorsuch Burford, the mother of Supreme Court Justice Neil Gorsuch. But DOJ argued against the subpoenas on her behalf. The fight ultimately led to her resignation, after which she cut a deal with the House.

The most recent charged and convicted criminal contempt of Congress cases occurred in the 1970s, when Watergate scandal figures G. Gordon Liddy and Richard Kleindienst were convicted and pleaded guilty, respectively, for refusing to answer congressional questions. Former CIA Director Richard Helms was given a suspended sentence and fined $2,000 under the same statute in 1977. Before that, many of the contempt cases arose from the House Un-American Activities Committee — and several convictions stemming from those cases were later overturned because of procedural failures.

Democrats say Bannon’s conduct is particularly brazen because he is refusing to answer any of the committee’s questions. Indeed, he declined to show up at all to his Oct. 14 deposition.

In that respect, his actions parallel claims from Trump and George W. Bush White House officials who insisted they had absolute immunity from congressional subpoenas and did not even have to turn up.

Lawyers say the Supreme Court’s decision last year over a House demand for Trump’s financial records has undercut the sweeping privilege claims Trump and Bannon are making. In that case, the justices unanimously rejected Trump’s claim of absolute immunity. However, they also set up a complex test for the courts to apply in congressional subpoena cases — one Trump has already leaned on to bolster his own lawsuit against the Jan. 6 committee.

Democrats contend that Trump’s departure from office and the fact that Bannon was only an informal adviser to Trump on Jan. 6 further undercut the executive privilege claims, but the courts have not indicated that either of those facts is fatal.

If Bannon were charged under the misdemeanor contempt statute, prosecutors would have to prove that Bannon “willfully” defied Congress. That could be difficult to show since he appears to have legal advice from his own attorney and Trump’s lawyers that he has valid legal arguments against the subpoena. His lawyer has said Bannon would comply if ordered to by a court.

Those mitigating factors could also prompt DOJ to decline to charge him in the first place.

“The criminal statute requires proof of the elements of the offense, each and every one of them, beyond a reasonable doubt,” said Brand. “They’re going to have some interesting conversations inside the U.S. attorney’s office. I don’t know which way they’ll go.”

On the other hand, Bannon’s privilege claim covering personal and political activities without any connection to Trump appears particularly flimsy. Prosecutors might consider Bannon’s refusal to answer those questions so unwarranted that it invites the criminal charge.

Some experts — and members of Congress themselves — have looked at the legal landscape and wondered if it’s time for lawmakers to dust off their most severe power: inherent contempt. That process allows the House to directly arrest and fine recalcitrant witnesses, at least initially bypassing the judiciary and taking matters into their own hands.

Several Jan. 6 committee members have noted that inherent contempt is on the table, even though House lawyers have been reluctant to consider it because of the extreme conflict it would provoke.

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