January 6 Panel Prepares to Hold Steve Bannon in Contempt of Congress

The former Trump adviser has declined to cooperate with the committee investigating the attack on the Capitol.

Published October 19, 2021

Good morning from the Uphill team. Haley is hoping to finish a college paper in her free time this week, and she’s soliciting study music recommendations. (It’s been the Dune score on repeat for a couple of weeks, but some variety is probably a good thing.) And Harvest and Ryan are trying to figure out how to navigate the DMV area while the metro is basically rendered useless. If you have tips on cheap ways to get around, let us know!

Congress is back from a week off, and Democrats are still negotiating how to proceed with President Joe Biden’s social investments and climate package. Biden will hold a series of meetings with Democratic lawmakers today, gathering with several progressives this afternoon and then a group of moderates at 4:30 p.m..

January 6 Committee Targets Bannon for Not Cooperating

The House select committee investigating the January 6 insurrection at the Capitol is poised to follow through on its threat to refer witnesses who refuse to testify to be held in criminal contempt of Congress.

The panel will meet tonight and has teed up a vote on a contempt report against former Trump adviser Steve Bannon for refusing to comply with a congressional subpoena.

Through his lawyer, Bannon previously argued that executive privilege shielded him from a need to cooperate with the probe. On Friday, committee chairman Bennie Thompson dismissed his argument.

“Mr. Bannon has declined to cooperate with the Select Committee and is instead hiding behind the former President’s insufficient, blanket, and vague statements regarding privileges he has purported to invoke,” Thompson said. “We reject his position entirely. The Select Committee will not tolerate defiance of our subpoenas, so we must move forward with proceedings to refer Mr. Bannon for criminal contempt.”

If the panel approves a report detailing Bannon’s refusal to testify along with recommended language for a resolution holding him in contempt, the matter would then go to the full House floor for a vote. The nine-member committee is expected to pass the measure easily. It is composed of seven Democrats, with only two Republicans—Reps. Liz Cheney and Adam Kinzinger.

If a resolution holding Bannon in criminal contempt of Congress passes the whole House, the decision on whether or not to prosecute the charge falls to the U.S. attorney for the District of Columbia. If pursued, it would come before a grand jury. A person who is found to be guilty of contempt, which is a misdemeanor offense, could face up to a year in prison and a fine of up to $100,000, according to the nonpartisan Congressional Research Service.

Maryland Rep. Jamie Raskin, a Democrat on the committee, emphasized the need to question Bannon during an interview with NPR last week.

“He was out there immediately before January 6th, on the 5th and the 4th, saying things like there was going to be a cataclysmic battle, all hell was going to break loose,” Raskin said. “He clearly knew a lot about what was going to happen in terms of the violent insurrection part of the events of the day.”

While the courts have affirmed congressional authority to wield and enforce subpoenas, the process can be beset with hurdles.

As we wrote in Uphill earlier this month, the House select committee sent subpoenas to four people who were in close communication with former President Donald Trump in the lead-up to January 6. Besides Bannon, former White House Chief of Staff Mark Meadows, former Defense Department official Kash Patel, and former White House social media staffer Dan Scavino also received subpoenas. Those three witnesses are reportedly in talks with the committee on how to proceed, and their initial deadlines for depositions have been delayed.

The committee’s efforts to obtain testimony and records related to January 6 are just the latest in Congress’s clashes with the former president in attempts to conduct oversight. Trump and his Cabinet officials relied heavily on claiming executive privilege in the face of congressional information and documents requests when he was in office.

The record on the effectiveness of criminal contempt as used by Congress has been mixed: the CRS report notes that when wielded, it does not always produce a more cooperative witness because “once a witness has been voted in contempt, he lacks an incentive for cooperating with the committee.” However, it can send a signal to other witnesses that the commission means business.

During the Trump administration, the House voted to hold Attorney General William Barr and Commerce Secretary Wilbur Ross in criminal contempt of Congress, but the DOJ declined to prosecute them.

At the time, then Deputy Attorney General Jeffrey Rosen said the department’s “long-standing position is that we will not prosecute an official for contempt of Congress for declining to provide information subject to a presidential assertion of executive privilege.”

Now the Biden administration is the one calling the shots over whether to bring criminal charges against uncooperative witnesses. Biden has already waived executive privilege with regard to some initial documents Trump wanted to withhold from the panel. White House press secretary Jen Psaki said last month the administration will continue to review whether to waive executive privilege on a “case-by-case” basis.

However, prosecution decisions may not be made along clear partisan lines. Ryan Burge, an assistant professor at Eastern Illinois University, told The Dispatch that presidents essentially have two sets of lawyers while in office: personal lawyers on their own payroll and government lawyers who protect the office of the presidency of the United States.

In his claims of executive privilege, Trump is attempting to get the latter category to defend him.

These lawyers may not be directly influenced by Biden’s wishes so much as their duty toward protecting as much power for the office of the presidency itself. And the Justice Department has taken some pains to make clear it will determine prosecutions separately from the sitting president. On Friday, Justice Department spokesperson Anthony Coley said the department “will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full Stop.”

These questions are bound to be determined in court in the coming weeks and months, as the committee and former president go head to head.

Trump sued Congress and the National Archives Monday in an effort to block the committee from obtaining documents related to his activity leading up to and during the attack on the Capitol on January 6. In his complaint, Trump asserted executive privilege over the materials and made the case it still applies despite no longer holding the presidency.

“The former President’s clear objective is to stop the Select Committee from getting to the facts about January 6th and his lawsuit is nothing more than an attempt to delay and obstruct our probe,” committee chair Thompson and vice chair Cheney said in response to the suit. “Precedent and law are on our side.”

They added: “It’s hard to imagine a more compelling public interest than trying to get answers about an attack on our democracy and an attempt to overturn the results of an election.”

If You Missed It

Former Reps. Dan Lipinski and Reid Ribble joined the Dispatch Podcast on Friday to discuss what’s wrong with Congress and how they think the institution could be improved. We recommend listening to the whole conversation, but here are a couple key moments:

Lipinski, an Illinois Democrat who lost his primary in 2020, said the House is in a particularly egregious state of disrepair. He noted many bills that pass the House are messaging bills not intended to create law—and a significant number of people who run for Congress today aren’t interested in legislating.

“Today, people run for Congress to represent their party to a large extent and just to fall in line with the party as if it were a parliament,” Lipinski said. “And we don’t have a parliamentary system. We purposely don’t have a parliamentary system. The framers of the Constitution wanted Americans to have both a House and a Senate–two different places to have input—they wanted a House and a Senate to actually debate and deliberate. They’re supposed to come together and bring their constituents’ diverse views, especially the House. Come together, talk about these diverse views, debate, deliberate, and try to come up with the best policy for the country. Today we have more of a system where people try to run for Congress and some of them don’t even run these days to be legislators. They run for the blue check mark. And that’s it.”

Ribble, a Wisconsin Republican who retired in 2017 after serving six years in the House, told Steve and Sarah about the challenges he faced trying to get bills through committees and contending with a fundraising-based system for committee assignments and chairmanships.

He recalled being told that “‘If you want to get better committee assignments, if you want to become a subcommittee chairman someday, you’ve got to be a team player and you’ve got to donate money to the NRCC, and you’ve got to help colleagues that maybe are a bit in tough districts.”

“All that stuff is monitored and measured,” Ribble said.

He pushed back on the idea that legislative power is gained through merit. “They rise based on their ability to raise money,” he said. “In essence, those committee assignments, those committee chairmanships and all that are bought and paid for.”

Ribble recalled an attempt he made to win a subcommittee chairmanship: “I was doing all the work necessary, I was talking to people and trying to build up support. I put a packet together on all my qualifications and why I could be subcommittee chairman. And the first question I got asked by everybody on the steering committee was, ‘How are you doing across the street?’ meaning how are you doing over at NRCC and raising money for the team. And I told them I was doing okay, but I wouldn’t say I was doing great. I ultimately didn’t get that subcommittee chairmanship, but I went to the person that did and I said, ‘So how does this whole thing work? I don’t get it.’ And he said, ‘Well, you screwed up. You gave them money in advance. I raised the money and I kept it in my account and said, ‘If you want this money, then I want this subcommittee chairmanship.’”

The full podcast is available here.

On the Floor

The House is expected to vote on the Family Violence Prevention and Services Improvement Act of 2021 this week. The bill includes funding for programs and grants to combat domestic violence around the country. Members may also consider bills to rename up to eight post offices this week, among other measures. A full list and text of bills the House may consider this week is available here.

Senate Majority Leader Chuck Schumer filed cloture last night for the chamber to consider the Freedom to Vote Act later this week. The bill has support from all Senate Democrats, according to Schumer. It represents a pared back version of Democrats’ election reform legislation, negotiated after West Virginia Sen. Joe Manchin voiced his opposition to components of the sweeping For the People Act. The legislation is unlikely to overcome a GOP filibuster. Read more from NBC here.

Key Hearings

The House Select Committee on the January 6 Attack on the Capitol will meet tonight to consider holding Stephen Bannon in criminal contempt of Congress for his refusal to testify before the committee. Information and livestream here.

A House subcommittee on space and aeronautics will hold a hearing on accelerating deep space travel with space nuclear propulsion tomorrow morning. Information and livestream here.

Secretary of Homeland Security Alejandro Mayorkas will testify before the Senate Judiciary Committee on the department Thursday morning. Information and livestream here.

Attorney General Merrick Garland will testify before the House Judiciary Committee in an oversight hearing Thursday at 10 a.m. Information and livestream here.

A House Homeland Security subcommittee will hold a hearing Thursday afternoon on efforts to resettle vulnerable Afghans. Information and livestream here.