The vote could be taken up by the full House as early as this week. The matter would then be referred to the Justice Department. Contempt of Congress is a misdemeanor criminal offense that can result in up to one year in prison and a fine of up to $100,000.
“We believe Mr. Bannon has information relevant to our probe, and we’ll use the tools at our disposal to get that information,” committee Chairman Bennie G. Thompson (D-Miss.) said in opening remarks before the vote Tuesday. “I expect that the House will quickly adopt this referral to the Justice Department and that the U.S. attorney will do his duty and prosecute Mr. Bannon for criminal contempt of Congress.”
Thompson added that Bannon “stands alone in his complete defiance” of the committee’s subpoena, and that the committee is collecting “thousands of pages of records” and “conducting interviews on a steady basis.”
Rep. Liz Cheney (R-Wyo.), the committee’s vice chair, outlined Bannon’s “substantial advance knowledge of the plans for Jan. 6” in her opening remarks, adding that he “likely had an important role in formulating those plans.”
“Mr. Bannon was in the war room at the Willard on January 6th,” Cheney said, referring to the D.C. hotel where Bannon met with Trump allies ahead of the day’s events. “He also appears to have detailed knowledge regarding the president’s efforts to sell millions of Americans the fraud that the election was stolen. In the words of many who participated in the January 6th attack, the violence that day was in direct response to President Trump’s repeated claims — from election night through January 6th — that he had won the election.”
Cheney went on to say that Trump and Bannon’s privilege arguments suggest that “Trump was personally involved in the planning and execution of January 6th.”
“And we will get to the bottom of that,” Cheney added.
On Tuesday, spokesman Bill Miller of the U.S. attorney’s office in Washington said in a statement, “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.”
The last time a person was charged with contempt of Congress was in 1983 under the Reagan administration. Former Environmental Protection Agency official Rita M. Lavelle was held in contempt by the House and was indicted by a federal grand jury for refusing to comply with a subpoena from a subcommittee investigating her management regarding the EPA’s hazardous waste cleanup fund.
Jonathan C. Su, a deputy counsel to the president, issued a letter to Bannon on Monday, notifying Bannon’s lawyer, Robert Costello, that the White House Counsel’s Office was “not aware of any basis for your client’s refusal to appear for a deposition.”
“As you are aware, Mr. Bannon’s tenure as a White House employee ended in 2017,” Su wrote in the letter obtained by The Washington Post. “To the extent any privileges could apply to Mr. Bannon’s conversations with the former President or White House staff after the conclusion of his tenure, President Biden has already determined that an assertion of executive privilege is not in the public interest, and therefore is not justified, with respect to certain subjects within the purview of the Select Committee.”
Costello declined to provide comment.
In earlier letters exchanged with Thompson, Costello argued that Bannon can’t respond to the subpoena because of executive privilege asserted by Trump and asked the committee on Monday for a week-long delay.
Thompson declined to grant the extension to Bannon and rejected his arguments for failing to cooperate with the subpoena, underscoring the committee’s desire to move quickly to resolve any attempts to delay the investigation.
Even if the U.S. attorney in consultation with Justice Department officials decides to prosecute Bannon and officials who do defy committee subpoenas, it’s not guaranteed that the criminal referral process will move quickly.
“It still may take a serious amount of time,” said Abbe Lowell, a top D.C. lawyer whose practice includes representing people in front of Congress and who is teaching a course on congressional oversight and investigation at Columbia Law School. “Maybe this is the way it has to be, but there’s no really rapid way to cause somebody to testify and produce documents to Congress when they don’t want to in a very rapid, efficient system since the days that the sergeant-at-arms went and arrested people.”
Legal experts have cast doubt on the merit of Bannon’s defense of his defiance of the subpoena and say the president’s immunity from congressional subpoena extends only to his closest White House advisers — and not private citizens like Bannon.
Trump’s sweeping claims of executive privilege to shield his activities and his aides and allies from congressional scrutiny have also been questioned by constitutional experts and lawyers.
Trump filed a 26-page lawsuit on Monday to block the House committee from receiving records for its inquiry from the National Archives, arguing that the committee’s document request serves no legislative purpose, that it undermines Trump’s executive privilege, and that the committee has provided Trump’s legal team with insufficient time to review the records requests.
Former George W. Bush administration official John Yoo said that Trump’s legal team would be well served to home in on the outstanding questions about whether a sitting president is the one who controls executive privilege for past presidents or whether a past president can claim it, too.
“If you get divorced and remarried, the new spouse doesn’t suddenly hold spousal privilege to everything we said — the old spouse does,” Yoo argued. “Changing a person doesn’t destroy the privilege. . . . If Trump’s lawyers were smart, that’s the kind of argument they would make, but effectively it’s going to be hard to win because Biden could just release the documents anyways.”
U.S. District Judge Tanya Chutkan was assigned on Tuesday to hear Trump’s lawsuit to block release of the records. She recently sentenced a defendant convicted of a misdemeanor in the Jan. 6 Capitol riots to 45 days in jail against prosecutors’ recommendation of home confinement, saying, “There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home.”
Chutkan, a 2014 appointee of President Barack Obama, is a former D.C. public defender and white-collar criminal defense attorney with the Boies Schiller Flexner law firm.
Among noteworthy cases, Chutkan presided over the prosecution of Maria Butina, the Russian graduate student convicted and later deported for conspiring to infiltrate the National Rifle Association as an agent of the Russian government without registering with the Justice Department; blocked the U.S. government’s effort transfer to a third country an American citizen held seven months without charges by the U.S. military in Iraq; and ordered a halt to the Trump administration’s 2019 effort to resume federal executions.