The decision on whether to prosecute former White House strategist Stephen Bannon for defying a congressional subpoena now rests solely with the Justice Department, which must wrestle with filing criminal charges against an ally of President BidenJoe BidenManchin to vote to nix Biden's vaccine mandate for larger businesses Congress averts shutdown after vaccine mandate fight Senate cuts deal to clear government funding bill MORE’s top political opponent while striving to assert its independence.
The House voted 229-202, including the backing of nine Republicans, to refer Bannon for prosecution after he refused to show for a slated deposition with the select House committee investigating the Jan. 6 attack on the Capitol.
In speeches on the floor Thursday, lawmakers on the committee stressed the importance of holding Bannon to account.
“We are here this afternoon to test a proposition as old as the country's founding. Are we a nation of laws? We are here because one man has decided that we are now only a nation of men, and that rich and powerful men need not follow the law. And the question we must confront is nothing less than this: Is he right?” House Intelligence Committee Chair Adam SchiffAdam Bennett SchiffJan. 6 panel releases contempt report on Trump DOJ official ahead of censure vote The Hill's Morning Report - Presented by Facebook - Biden to update Americans on omicron; Congress back Sunday shows - Spotlight shifts to omicron variant MORE (D-Calif.) asked. “Are some people now truly above the law, beholden to nothing and no one, free to ignore the law and without consequence?”
But the call now belongs to Attorney General Merrick GarlandMerrick GarlandThe Memo: Trump's justices look set to restrict abortion House progressives urge Garland to intervene in ex-environmental lawyer Steven Donziger's case Garland orders DOJ to prioritize violence on airplanes MORE, who has identified as one of his chief missions restoring credibility to a department that was heavily politicized under former President TrumpDonald TrumpBaldwin calls Trump criticism following 'Rust' shooting 'surreal' Haley hits the stump in South Carolina Mary Trump files to dismiss Trump's lawsuit over NYT tax story MORE.
So far, the department has done little to tip its hand about how it will address Bannon.
"If the House of Representatives votes for a referral of a contempt charge, the Department of Justice will do what it always does in such circumstances, we'll apply the facts and the law and make a decision, consistent with the principles of prosecution," Garland said at an appearance before the House Judiciary Committee just hours before the vote to censure Bannon.
Prosecutions for criminal contempt of Congress are rare and can be years-long ordeals. They can also be difficult cases to make in court.
The last time prosecutors secured convictions for criminal contempt charges was in the aftermath of the Watergate scandal.
During the Reagan administration, Environmental Protection Agency Administrator Anne Gorsuch Burford, the mother of Supreme Court Justice Neil GorsuchNeil GorsuchWhat's that you smell in the Supreme Court? The Memo: Trump's justices look set to restrict abortion Five revealing quotes from Supreme Court abortion case MORE, was prosecuted after defying a subpoena in lawmakers’ investigation into potential mismanagement of a $1.6 billion Superfund.
The charges were ultimately dropped when the Reagan White House agreed to retract its executive privilege claims and Burford resigned.
Bannon has said he won't testify before the committee until the courts rule on an executive privilege case filed by Trump.
Lawmakers on the panel argue his claims have little merit as executive privilege is typically applied by sitting presidents and because Bannon had been fired from the White House long before the attack took place. He still needs to appear before the committee, they say, even if only to exercise his Fifth Amendment rights and refuse to answer questions that may incriminate him.
He was sought by the committee for his role in planning rallies around Jan. 6, with Rep. Adam Kizinger (R-Ill.) saying Bannon described the events set to follow with “chilling accuracy” when he warned on his podcast that “all hell is going to break loose.”
Panel Vice Chair Liz CheneyElizabeth (Liz) Lynn CheneyProsecutors say North Carolina woman deserves prison for bringing 14-year-old to Capitol riot Rules committee mulls contempt vote for Trump DOJ official McCarthy faces headaches from far-right House GOP MORE (R-Wyo.) sees Bannon as a potential connecting dot between the events and the White House.
“I think that it is a logical conclusion that if he’s claiming that executive privilege covers those discussions, obviously the president was involved in discussions about the planning,” she told The Hill this week.
After the vote Thursday, lawmakers offered varying degrees of confidence that the Department of Justice (DOJ) would refer charges to a grand jury.
“He said what he could say,” House Judiciary Committee Chair Jerry NadlerJerrold (Jerry) Lewis NadlerHouse passes bill to expedite financial disclosures from judges Unrequited rage: The demand for mob justice in the Rittenhouse trial Overnight Energy & Environment — Presented by American Clean Power — Democrats prepare to grill oil execs MORE (D-N.Y.), who originally asked Garland about his prosecution plans, told The Hill.
“I think they're going to be very aggressive, but there are ethical restraints on what they can say,” he said.
The decision at DOJ would largely come down to whether there is probable cause, whether the case can be proven in court and the gravity of charging an aide to a former president of the opposite party.
“The U.S. attorney [general] obviously has a decision to make; they have charging criteria. There are rules for prosecutors, they’ll run it through their analysis. And, you know, we think that the public interest is obviously overwhelming in seeing that this subpoena is respected and that this crime is prosecuted,” Rep. Jamie RaskinJamin (Jamie) Ben RaskinHouse progressives urge Garland to intervene in ex-environmental lawyer Steven Donziger's case Trump allies leaning on his executive privilege claims Oversight panel eyes excessive bail, jail overcrowding in New York City MORE (D-Md.) told The Hill.
But the department would also need to do a more granular analysis of a number of memos from its own Office of Legal Counsel (OLC), including two that suggest the DOJ should refrain from pursuing officials where a president has claimed executive privilege.
“The principles that protect an executive branch official from prosecution for declining to comply with a congressional subpoena based on a directive from the president asserting executive privilege similarly shield a current or former senior adviser to the President from prosecution for lawfully invoking his or her immunity from compelled congressional testimony,” OLC concluded in 2008.
“An OLC memo is no little thing, it's like force of law within the executive branch,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general during the Clinton administration, noting that DOJ declined to enforce subpoenas against former Attorney General Eric HolderEric Himpton HolderWith extreme gerrymanders locking in, Biden needs to make democracy preservation job one The Memo: Democrats may rue pursuit of Bannon Ben Affleck, Tracee Ellis Ross join anti-gerrymandering fundraiser with Clinton, Holder MORE or Harriet Miers, White House counsel to former President George W. Bush.
Litman said doing so would be viewed as a violation of separation of powers.
“We're not in the business, and constitutionally can't be in the business, of trimming the sails of executive privilege and punishing people in the executive branch who exercise executive privilege,” he said, summarizing the memo.
But Litman also said Bannon’s executive privilege arguments are “a lousy claim” — his time in the White House ended long before he was involved in Jan. 6 planning as a private citizen.
“Really, there's no legitimate executive privilege claim that's been asserted,” he said. “[Garland] could say, the ‘OLC opinion is law, but it doesn't apply where, as here, there's a total crap, meritless executive privilege claim.' ”
Biden has already waived executive privilege claims on a trove of Trump documents held by the National Archives and requested by the committee, which Trump is challenging in his suit.
That case appears to be on an expedited schedule, set for a hearing on Nov. 4.
It’s possible Garland could await a decision in the case, but it is likely to face appeals regardless.
And DOJ has also been under pressure from lawmakers who say it has not been aggressive enough in prosecuting Trump-era indiscretions.
In a candid conversation with Yahoo News’s “Skullduggery” podcast, Schiff, one of the nine members of the Jan. 6 committee, criticized DOJ for not prosecuting Trump for a January call to Georgia’s secretary of state in which he asked him to “find” more votes.
“I think there's a real desire on the part of the attorney general, for the most part, not to look backward,” Schiff said. “Do I disagree with that? I do disagree with that, and I disagree with it most vehemently when it comes to what I consider even more serious offenses.”
“You don't ignore the crimes that have been committed by a president of the United States,” he said.
He sounded hopeful moving forward but acknowledged the risk Garland may not pursue charges.
“The Speaker will refer to the Justice Department, where the statute says the Justice Department has a duty to present it to the grand jury,” Schiff said. “Now, that duty is not always fulfilled. But there are some very positive signs that it will be fulfilled. It really needs to be.”
Raskin noted that if Garland declines prosecution, the committee could pursue a civil suit, a method that could drag on but relieve DOJ from enforcing the subpoena directly.
“I have no indication one way or the other, but remember, this is not the end of it for our committee. We have multiple avenues for pursuing people who refuse to comply with lawful orders of the committee,” he told The Hill.
Rep. Pete AguilarPeter (Pete) Ray AguilarTrump allies leaning on his executive privilege claims All eyes on Garland after Bannon contempt vote First senator formally endorses Bass in LA mayoral bid MORE (D-Calif.), another member of the panel, said it is important for it to assert its own rights.
“We're just following the law and following the process that's allowed to us,” Aguilar told The Hill. “So, the Department of Justice is independent — they make their own decisions — but the federal law says that they have the duty to bring this in front of a grand jury, and we hope that they do just that.”