The indictment is a first: No one has been prosecuted for contempt of Congress when executive privilege was asserted.
Steve Bannon indicted for contempt of Congress
Nov. 13, 202101:47By Pete Williams
WASHINGTON — Former Trump adviser Steve Bannon was indicted by a federal grand jury Friday, charged with contempt of Congress for refusing to answer questions from the House Committee investigating the Jan. 6 Capitol riot.
The indictment is a first. No one has been prosecuted before for contempt of Congress when executive privilege was asserted. The past cases involved defendants whose testimony was sought regarding their government service. Bannon, by contrast, left his White House job in 2017, well before the period of interest to the House committee.
He was charged Friday with two contempt counts — one for refusing to appear for a deposition and another for declining to produce documents requested by the committee.
If convicted, Bannon could face up to a year behind bars and a fine of up to $100,000.
A law enforcement official said Bannon is expected to surrender on Monday and appear in court that afternoon.
Neither Bannon nor his attorney immediately responded to a request for comment.
Attorney General Merrick Garland issued a brief statement explaining the decision to indict Bannon.
“Since my first day in office,” he said, “I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law, and pursues equal justice under the law. Today’s charges reflect the department’s steadfast commitment to these principles.”
The fact that the Justice Department was willing to charge Bannon with criminal contempt, despite an assertion of executive privilege, may help pressure other reluctant witnesses to agree to cooperate with the committee’s investigation.
The committee has subpoenaed 16 former Trump White House officials for testimony, documents or both.
Committee chair Bennie Thompson, D-Miss., and ranking member Rep. Liz Cheney, R-Wyo., said in a joint statement Friday that the indictment should serve as a warning to any other former Trump officials who are considering defying a congressional subpoena.
“Steve Bannon’s indictment should send a clear message to anyone who thinks they can ignore the Select Committee or try to stonewall our investigation: no one is above the law,” the lawmakers said. “We will not hesitate to use the tools at our disposal to get the information we need.”
The House voted Oct. 27 to find Bannon in contempt after he declined to provide the Jan. 6 committee with documents and testimony. Committee members cited comments Bannon made on his radio program the day before the riot.
“All hell is going to break loose tomorrow,” he said on the program.
The House panel said the statement suggested that “he had some foreknowledge about extreme events that would occur the next day.”
Bannon’s lawyer, Robert Costello, told the committee in a letter that his client would not comply with the subpoena. The letter said former President Donald Trump was choosing to assert executive privilege and encouraging his former aides not to reveal anything that might be covered by the privilege.
The extent of a former president’s ability to invoke executive privilege has never been firmly established. The U.S. Court of Appeals for the District of Columbia has scheduled oral arguments for Nov. 30 on the issue, in the dispute between Trump and the National Archives over scores of Trump White House documents sought by the Jan. 6 committee.
Obtaining a conviction for any crime requires proof of acting with improper intent, and Bannon may have a strong defense in arguing that he was acting on the advice of his lawyer not to testify. Some federal courts have ruled that good-faith reliance on the advice of counsel is a complete defense in a criminal contempt action.
Like anyone charged with a crime, Bannon will now go through the standard criminal process in federal court. He will be arraigned and will enter a plea. Unless he pleads guilty, the judge will set a trial date. A conviction, however, would not require him to testify before the House committee. It would simply constitute his punishment for refusing to do so.
The record of successful prosecutions for contempt of Congress is a slim one. The authority was widely invoked during the anti-communist hearings of the 1950s, but many of those cases ended either in acquittal or dismissal on appeal.
The last Justice Department prosecution of a contempt referral came in 1983, during the Superfund investigation in the Reagan administration. Former EPA official Rita Lavelle was charged with contempt but her case, too, ended in acquittal.