For months, critics of the Justice Department have bemoaned the lack of visible evidence the department would pursue former Trump administration officials and allies involved in the Jan. 6 violent insurrection, not to mention the former president. That judgment was premature and lacked an appreciation for how to prosecute big conspiracy cases (which is potentially at issue here).
Whether a mob trial or a major financial fraud scheme, prosecutors start with the lowest-level offenders, demand tough sentences, encourage them to “flip” and cast a wide net for documents and witnesses. In this unusual case, the bipartisan House select committee (with a Republican vice chair) effectively has acted as an investigative operation for the Justice Department, which will be the beneficiary of whatever the committee uncovers.
On Friday, Attorney General Merrick Garland demonstrated he is no scaredy-cat when it comes to going after higher-ups from the previous administration. In obtaining a two-count criminal indictment of Stephen K. Bannon for contempt of Congress from a grand jury, Garland signaled the department intended to enforce the law (in this case, the obligation to respond to a subpoena) against former Trump administration officials and allies as it would against any American. Bannon’s refusal to appear and produce documents in response to a lawful subpoena must entail serious consequences.
“DOJ has demonstrated it can conduct the run-up to an indictment in total secrecy — as it should. The indictment also reinforces the obligation a person who receives a subpoena from Congress has to show up,” former federal prosecutor Joyce White Vance tells me. “They can’t just claim blanket executive privilege in a letter. They must appear and turn over documents or a log of documents they claim are privileged.” She points out that if they have a privilege to assert, witnesses still have to show up to assert it. “In other words, DOJ has drawn a line in the sand for those who have spent the last four-plus years acting like they’re above the law,” she concludes.
This marks a genuine inflection point in the investigation of Jan. 6 suspects. Several points deserve emphasis.
First, the indictment comes just days after a district court judge flatly rejected claims to executive privilege advanced by the former president in the case of government documents under the control of the National Archives. Bannon and others who have flouted the committee, including former chief of staff Mark Meadows, will have no fig leaf to hide behind, unless the district court’s decision gets reversed.
The select committee chairman Bennie Thompson (D-Miss.) and vice chair Liz Cheney (R-Wyo.) indicated in a written statement that they mean business: “Steve Bannon’s indictment should send a clear message to anyone who thinks they can ignore the Select Committee or try to stonewall our investigation: no one is above the law. We will not hesitate to use the tools at our disposal to get the information we need.” (This development, by the way, underscores the utter idiocy of Minority Leader Kevin McCarthy’s (R-Calif.) decision to turn down a bipartisan commission in which Republicans’ consent for subpoenas would have been required and further to pull out his entire slate of appointments to the select committee when Speaker Nancy Pelosi (D-Calif.) nixed the most egregiously unfit Republican appointees.)
Second, it is one thing to talk a good game to right-wing media and quite another to face jail time. Moreover, Bannon may have financial resources to litigate, but other former Trump administration allies and officials do not. If only a few of them recognize that it is folly to go bankrupt litigating a specious defense to subpoenas, we may finally get firsthand accounts of surrogates’ and the former president’s actions.
Third, this is the way it should always work. Witnesses must respond to subpoenas. Serious punishment follows if they do not. Only under Donald Trump’s rule of lawlessness did it become commonplace for witnesses to defy Congress, make up bogus excuses and get away with it (as was the case in the first impeachment). The reassertion of a rules-based system in which the powerful (or previously powerful) have no special privileges is satisfying. Justice is being done. As former acting solicitor general Neal Katyal tells me, “The Bannon indictment is Exhibit A that the traditional DOJ is back, and [Friday’s] indictment is going to change the cooperation dynamics of every other potential witness and target.”
Fourth, an indictment for contempt certainly is separate from indictment for underlying crimes. Nevertheless, it would be peculiar in the extreme for Garland to declare in his written statement accompanying the Bannon indictment that “the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law” but then, if incriminating facts turn up, declare prosecution for any crimes uncovered to be “too political” or “bad precedent.” We should take him at his word that he will enforce the law without favor or political consideration.
Finally, the ability to enforce subpoenas only when a responsible administration is in office reminds us that Congress needs its own enforcement mechanism. “The criminal route [to enforcement] requires the cooperation of the Justice Department,” writes law professor Steve Vladeck. “And when the witness is a current (or even former) executive branch official, or the case otherwise has a strong partisan valence (and what doesn’t these days), that cooperation may well be lacking.”
Vladeck (as well as congressional sponsors of a package of reforms that addresses Congress’s powerlessness) believes that “Congress can and should create an express, expedited mechanism for judicial review of its subpoenas.” As Vladeck argues, “Because Congress has broad control over the timing of federal litigation, it can put these cases on a very quick timeline — to ensure the witness can’t win simply by running out the clock.”
In sum, the Bannon indictment is a satisfying, potentially important step in determining responsibility for the Jan. 6 insurrection. The committee and Garland’s determination to end the era of lawlessness and executive imperialism should prompt swift passage of reforms necessary to restrain a future authoritarian president and his henchmen.