The House committee investigating the Jan. 6 attack on the Capitol plans to refer former Trump White House strategist Stephen Bannon to the Justice Department for criminal prosecution after he refused to appear for a slated deposition.
Bannon informed the committee last week that he would refuse to comply with the subpoena, citing a yet-to-be-filed suit from former President TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE claiming documents and testimony sought by the committee are covered by executive privilege.
The law allows for Congress to refer a noncompliant witness to the Justice Department for criminal prosecution, which could result in jail time, a fine or both.
“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. 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. I’ve notified the Select Committee that we will convene for a business meeting Tuesday evening to vote on adopting a contempt report,” Chair Bennie ThompsonBennie Gordon ThompsonThe Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Bennie Thompson not ruling out subpoenaing Trump Jan. 6 panel to pursue criminal contempt referral for Bannon MORE (D-Miss.) said in a statement.
“The Select Committee will use every tool at its disposal to get the information it seeks, and witnesses who try to stonewall the Select Committee will not succeed.”
Following a vote from the House, a referral would put the ball in the Justice Department's court, requiring the executive branch to determine how aggressive it wants to be in pursuing Bannon.
The decision to act would likely be made by the U.S. attorney’s office in Washington, D.C., and lawyers at the highest levels of the main Justice Department.
Lawyers would need to determine if there’s probable cause — a likely determination given that experts say Bannon's and Trump's executive privilege claims have little merit — and whether the case can be proved in court. The department could take into consideration the gravity of the situation, in that officials would be charging an aide to a former president of the opposite party.
The Department of Justice declined to comment.
Bannon and his attorney did not immediately respond to a request for comment.
Lawmakers on the committee have been increasingly vocal in recent days that there should be criminal repercussions for defying the committee.
“We are completely of one mind that if people refuse to respond to questions without justification that we will hold them in criminal contempt and refer them to the Justice Department,” Rep. Adam SchiffAdam Bennett SchiffSchiff: McCarthy 'will do whatever Trump tells him' if GOP wins back House Jan. 6 panel to pursue criminal contempt referral for Bannon Bannon's subpoena snub sets up big decision for Biden DOJ MORE (D-Calif.) told The Washington Post earlier this week.
“We intend to enforce our subpoenas, and the first step will be for us to pursue criminal contempt,” Rep. Stephanie MurphyStephanie MurphyOn The Money — Progressives play hard ball on Biden budget plan Overnight Energy & Environment — Presented by ExxonMobil — Climate divides conservative Democrats in reconciliation push Jan. 6 panel to pursue criminal contempt referral for Bannon MORE (D-Fla.) said during an appearance on MSNBC.
“What that means is that the committee will put together a report and refer it to the House floor. There will be a vote, then it goes to the Department of Justice. I fully expect this Department of Justice to uphold and enforce that subpoena. I think this Department of Justice believes that nobody is above the law.”
Bannon was subpoenaed by the committee along with three other Trump aides. Former White House Chief of Staff Mark MeadowsMark MeadowsBiden: Those who defy Jan. 6 subpoenas should be prosecuted Ethics watchdog accuses Psaki of violating Hatch Act The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle MORE and Kashyap Patel, the chief of staff to then-acting Defense Secretary Christopher Miller, are reportedly “engaging” with the committee, while Dan Scavino, Trump’s deputy chief of staff for communications, was only recently able to be located and served.
“We’re grateful to the many individuals who are voluntarily participating and to witnesses who are complying with subpoenas, including several who met the deadline to begin producing materials to the Select Committee,” Thompson added in his statement.
Experts have been highly skeptical that Trump’s executive privilege claims will carry much weight with the Justice Department as they debate whether to file criminal charges on Bannon.
“First of all, the executive privilege applies to a sitting president, not former presidents, because the focus is on the national security interests of the country. It's a very limited doctrinal privilege,” Rep. Jaime Raskin (D-Md.), one of the nine lawmakers on the committee, told reporters last month.
“In any event, even if the court were to weigh the public's overwhelming interest in getting at the truth of events, versus the interest in national security, in this case both factors are on the side of disclosure. The public has an interest in knowing everything about the attack on our democracy, and that truth-seeking function will improve national security. So national security argues for disclosure, not for secrecy.”
The Biden administration also recently agreed to waive executive privilege claims to a tranche of documents the committee already requested — a sweeping request covering a number of people in Trump’s orbit.
“This is just the first set of documents, and we will evaluate claims of privilege on a case-by-case basis, but the president has also been clear he believes it to be of the utmost importance for both Congress and the American people to have a complete understanding of the events of that day to prevent them from happening again,” White House press secretary Jen PsakiJen PsakiJill Biden campaigns for McAuliffe in Virginia Buttigieg hits back after parental leave criticism: 'Really strange' Biden: Those who defy Jan. 6 subpoenas should be prosecuted MORE said when the first batch was approved last week.
If the Justice Department is hesitant to pursue criminal charges against Bannon, the committee could also file its own civil suit asking a judge to hold Bannon in contempt, a move that could also mean jail time.
“[Attorney General Merrick] Garland has demonstrated that he is one to show quite a bit of restraint, quite a bit of respect toward separation of powers. He has stated part of his mission is to restore public confidence and independence of the Justice Department, so I don’t know that he’s going to be terribly aggressive here,” Barbara McQuade, who served as a U.S. attorney during the Obama administration, previously told The Hill.
“It’s the less aggressive approach that might be effective,” she said of a civil suit. “Prosecutors in general and Garland in particular tend to look for the path of least resistance. I don’t need to use the nuclear weapon if the conventional weapon will work.”
—Updated at 3:52 p.m.