Good morning, Early Birds. Are you getting your Thanksgiving recipes ready (they don't have to be boring). 

On the Hill

Bannon's contempt charge sparks debate over Jan. 6 panel strategy

Double-edged subpoena: The House select committee investigating the Jan. 6 attack on the Capitol scored a big win when President Biden's Justice Department last week moved to indict Steve Bannon for defying a congressional subpoena. 

The former Trump White House adviser, one of 35 people who have been subpoenaed by the select committee, surrendered to federal authorities and appeared in federal court for the first time on Monday. Bannon is the first of the group to be held in criminal contempt. 

So far, the committee has interviewed over 150 people, and has threatened to ramp up efforts to compel testimony from Mark Meadows, former president Donald Trump's chief of staff, and Jeffrey Clark, a former DOJ official, after they both refused to cooperate. 

But such a strategy has risks for the Jan. 6 panel, which is looking to conduct an investigation as quickly as possible. Legal experts and lawyers who advise clients on congressional investigations are divided over whether the sheer number of subpoenas issued by the committee could backfire if their targets elect to defy them en masse.

“I do think that by issuing so many subpoenas, and likely not being able to enforce that many subpoenas, the select committee risks diluting the House’s subpoena power and, in particular, reducing the impact of the issuance of subpoenas,” said Robert Kelner, who leads Covington & Burling’s congressional investigations practice.

Bannon made clear outside the courthouse yesterday he won't go down without a big fight: “I’m telling you right now this is going to be the misdemeanor from hell for Merrick Garland, Nancy Pelosi and Joe Biden,” he said. “We’re going to go on the offense on this and stand by.”

35 subpoenas

We still don't know just how many of the 35 people subpoenaed by the House panel have cooperated with the committee. But enforcing even a single congressional subpoena takes time and effort, and trying to enforce dozens of them together could prove a daunting task for a committee whose unofficial deadline is the 2022 midterm elections. 

“The House either needs to file a lawsuit and litigate it, or they need to refer a contempt motion in each case to the Department of Justice for consideration by a grand jury,” Kelner said. “These are not enforcement tools that are designed to be used on a massive scale because they are so labor-intensive. They’re intended to be used in a more surgical fashion.”

Now that  DOJ has moved forward with Bannon's criminal prosecution, it's unclear how long such a trial will take. Further, the criminal charge doesn't “necessarily get [the panel] the testimony or records they need," Abbe Lowell, a top D.C. lawyer teaching a course on congressional oversight and investigation at Columbia Law School, told The Early. 

Bannon's prosecution alone “would merely punish him for his defiance of the subpoena,” according to Randall Eliason, a former federal prosecutor who's now teaches law at George Washington University.

“So although punishing Bannon might be completely appropriate, it does not serve the committee’s ultimate goal of determining what happened on January 6,” Eliason wrote in a blog post last month. 

Beyond Bannon

Rep. Jamie Raskin (D-Md.) told reporters last night the committee had yet to make a decision on whether to hold Clark and Meadows in contempt. “We haven't gotten there yet,” he said. 

Raskin added he was unconcerned about diluting the power of the subpoena and stressed the importance of ensuring that witnesses understand they do not have “permission to blow off a congressional subpoena.”

“Let's be clear, the overwhelming number of people have been cooperating with the committee,” he said. “But the use of the law does not diminish the effectiveness of the law. On the contrary, they would like us not to be enforcing these subpoenas, and that would diminish the effectiveness of the law.” 

“We continue to gather more information — if adding more subpoenas meant receiving less information I would be surprised, but that's not what we've seen,” Rep. Pete Aguilar (D-Calif.) told The Early. 

Still, it's not a given that even the threat of criminal prosecution will sway key witnesses who were — and remain — close to Trump to cooperate. 

“In some ways, Bannon is the worst example of Congress asserting contempt power because he wears [the prosecution] as a badge of honor and has shown he has no intention of doing what others have done, which is try to work a compromise, Lowell said. 

Another lawyer who advises clients on congressional investigations, who spoke on the condition of anonymity to speak candidly, told The Early that Congress had little choice but to subpoena witness who refuse to cooperate voluntarily.

“It seems to me [that the committee has] been put in a position by people not cooperating where it kind of has to subpoena them if it wants to move its investigation forward,” the lawyer said.

At the White House

Biden and Xi talk Taiwan, human rights in marathon meeting

Marathon meeting: Biden had a longer-than-expected virtual meeting with Chinese President Xi Jinping on Monday night, talking for three-and-a-half hours about China's human rights record, Afghanistan, Iran and North Korea, among other subjects.

There was “an extended discussion” of Taiwan following increasing tensions between China and the island, including recent sorties by Chinese planes near Taiwanese airspace. Biden “was very clear about the U.S. interest in ensuring that there was no unilateral change,” a senior administration official told reporters early this morning.

  • Still, there was “nothing new established in the form of guardrails” to prevent tensions from spiraling into conflict, the official said.
  • Biden did raise concerns about China’s suppression of minorities in Xinjiang province, about unfair trade and economic practices and its recent aggression against Taiwan, report our Seung Min Kim, Ashley Parker, Ellen Nakashima and Lily Kuo.
  • Xi, wrote our colleagues, said ideological divides and blocs would bring “inevitable calamity” to the world. “The consequences of the cold war are not far away,” he said, adding that China would hold dialogues on human rights issues “on the basis of mutual respect,” but said Beijing would not support interference in its internal affairs, according to Xinhua, China’s official news agency.

On K Street

Ex-Trump aides form health-care think tank

First in The Early: Several former Trump administration officials are launching a new think tank, Paragon Health Institute, focused on studying “market-oriented” health-care polices, Theo and Rachel Roubein report.

  • Brian Blase, who served on the National Economic Council in Trump's White House and later started a consulting firm, will be the think tank’s president. He helped craft an executive order during the Trump administration on promoting alternatives to Obamacare coverage and worked on efforts to crack down on consolidation in the health industry and bolster competition.
  • Demetrios Kouzoukas, who was a top official at the Centers for Medicare and Medicaid Services in the Trump administration, and Joel Zinberg, who served on Trump’s Council of Economic Advisers, are also on board, along with Caroline DeBerry and Gary Alexander.
  • The think tank also has a roster of outside advisers, which includes a mix of Trump administration veterans (Joe Grogan, Eric Ueland, Paul Mango, Stephen Parente); former officials in George W. Bush’s administration (Al Hubbard, Tevi Troy); academics (Marty Makary, Carl Schramm) and conservative think tank types. Stand Together, the group behind Charles Koch’s network of nonprofits, is among the groups providing financial support, according to a spokesman.
Build Back Better analysis

What’s in the bill: The law-and-lobbying firm Brownstein Hyatt Farber Schreck has prepared a 49-page memo for clients outlining the tax provisions of the latest version of Democrats’ massive child care, health care and climate bill in exhaustive detail. (The bill is almost certain to change once it lands in the Senate, of course.)

Meanwhile: A coalition of more than three dozen trade groups including the American Hotel and Lodging Association, the National Association of Wholesaler-Distributors and the Wine and Spirits Wholesalers of America are going up with a new TV ad seeking to kill the bill.

The ad warns BBB would “impose taxes on incomes way under $400,000 and destroy middle-class jobs.” It's airing on cable and online in the Washington market.

The Data

Bleak 2022 prospects, visualized: The latest Washington Post-ABC News poll “offers a set of harsh judgments about the president’s performance and the state of the economy,” our colleagues Dan Balz, Scott Clement and Emily Guskin write. “Together, they send a stark warning to Democrats about their prospects in the 2022 midterm contests.”

  • “The Post-ABC poll finds that, if elections were held today, 46 percent of adults overall would back the Republican candidate for Congress and 43 percent would support the Democratic candidate. Among registered voters, the GOP advantage goes to 51 percent vs. 41 percent for Democrats, a historically strong result for Republicans on this measure.”

The Media

What we’re reading: 


The Setup: 

The Shot: 

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