Bannon indicted on contempt charges in Jan. 6 investigation

November 12, 2021

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WASHINGTON – Steve Bannon, former President Donald Trump’s political strategist, was indicted by a federal grand jury Friday on two charges of criminal contempt for defying a House subpoena seeking documents and testimony as part of an escalating congressional inquiry into the Jan. 6 attack.

The Justice Department’s decision to pursue the flamboyant Trump stalwart came three weeks after the House referred the case to federal prosecutors following Bannon’s repeated refusal to cooperate with a special House committee’s inquiry.

“Since my first day in office, 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,” Attorney General Merrick B. Garland said in a statement announcing the indictment. “Today’s charges reflect the department’s steadfast commitment to these principles.”

Bannon, 67, is scheduled to surrender Monday to authorities and make his first court appearance that day.

Bannon is charged with one contempt count involving his refusal to appear for a deposition and another involving his refusal to produce documents, despite a subpoena from the House committee. An arraignment date hasn’t yet been set in the U.S. District Court. Each count carries a minimum of 30 days and a maximum of one year in jail, as well as a fine of $100 to $1,000.

A criminal prosecution represents a serious escalation of the House panel’s investigative effort and an important test for the Biden Justice Department and a attorney general who has vowed to separate politics from a department roiled by the repeated interventions of Trump.

The Justice action also came hours after after former Trump chief of staff Mark Meadows refused to comply with a similar committee subpoena.

In a joint statement issued shortly after the Bannon charges were announced, committee Chairman Bennie Thompson, D-Miss., and Vice Chairwoman Liz Cheney, R-Wyo., signaled that Meadows risks the same fate.

“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. We will not hesitate to use the tools at our disposal to get the information we need,” the lawmakers said.

“While we’re determined to get all the information we’re seeking, Mr. Meadows, Mr. Bannon, and others who go down this path won’t prevail in stopping the Select Committee’s effort getting answers for the American people about January 6th…”

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Such prosecutions are rare and typically a settlement is negotiated to avoid them, according to a nonpartisan Congressional Research Service report. Litigation could take months or years.

Bannon, who didn’t work for the executive branch at the time was in contact with Trump in the days leading up to the attack on Jan. 6. Bannon’s lawyers told the committee in a letter Oct. 7 that Trump instructed him not to cooperate because the former president would fight disclosure under executive privilege – despite Bannon not working for the government.

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The House committee voted Oct. 19 to urge a prosecution for criminal contempt. The House then voted Oct. 21 to approve the criminal citation and refer the case to the department for possible prosecution.

“No one in the United States of America has the right to blow off a subpoena by court or by the United States Congress,” Rep. Jamie Raskin, D-Md., who taught constitutional law at American University for more than two decades, said after the vote. “If Mr. Bannon wants to show up and plead the Fifth Amendment because he will incriminate himself, he has that constitutional right.”

Explainer:What does it mean to be held in contempt?

Raskin said the committee could offer Bannon immunity so that his testimony wouldn’t be used against him in a criminal trial.

What Biden said

President Joe Biden complicated the case by saying the department should prosecute Bannon and others. He acknowledged that he shouldn’t have said it, but that he answered a question honestly.

Biden told reporters Oct. 15 he hoped the committee “goes after” people who defy subpoenas “and holds them accountable criminally.” Asked whether they should be prosecuted, Biden replied: “I do, yes.”

Biden told a CNN town hall Oct. 21 that what he said wasn’t appropriate. He said the department would make its own decision about whether to prosecute.

“I did not, have not, and will not pick up the phone and call the attorney general and tell him what he should or should not do in terms of who he should prosecute,” Biden said.

Biden’s initial comments, however, brought a swift response from the Justice Department.

“The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law,” a Justice spokesman said last month. “Period. Full stop.”

Jack Goldsmith, a Harvard law professor, tweeted that any prosecution of Bannon, which he considered legally justified, “will be tainted by Biden’s remark.”

A rare moment in political history

Prosecutions for criminal contempt of Congress are relatively rare, with the 1857 statute wielded primarily as a deterrent. The potential punishment is a year in jail and a $1,000 fine.

Here are summaries of cases during the last 40 years of criminal contempt citations:

In 1982, two House committees subpoenaed the head of the Environmental Protection Agency for documents related to enforcement of the Superfund law. Administrator Anne Burford refused to disclose under the documents under direction of President Ronald Reagan as protected by executive privilege. The House approved a criminal contempt citation, but the U.S. attorney refused to present the case to the grand jury. The committees eventually reached agreements to receive access to documents and effectively withdraw the contempt citation.

In 2007, the House Judiciary Committee subpoenaed former White House counsel Harriet Miers and chief of staff Joshua Bolten for testimony and documents about the dismissal of U.S. attorneys under President George W. Bush, who asserted executive privilege. The attorney general declined to prosecute either official for criminal contempt. The House sued for compliance and after two years of litigation reached a settlement for documents and testimony from Miers in a closed but transcribed hearing.

In 2012, the House Oversight and Government Reform Committee sought documents from Attorney General Eric Holder about the “Fast and Furious” investigation into firearms trafficking. The Justice Department notified the committee it wouldn’t take action on a criminal contempt charge, based on executive privilege and prosecutorial discretion. The committee sued to enforce the subpoena and a federal District Court instructed the department to comply with the subpoena in 2016.

In 2013, former Internal Revenue Service official Lois Lerner invoked her Fifth Amendment right against self incrimination about the scrutiny of tax exempt groups, after making an opening statement before the House Oversight committee. About 10 months later, the House approved a criminal contempt citation, but the U.S. attorney said she hadn’t waived her Fifth Amendment rights and wouldn’t be prosecuted.

The last successful criminal prosecutions for contempt of Congress were in the early 1970s, when G. Gordon Liddy was convicted and Richard Kleindienst pleaded guilty in the Watergate scandal.

Follow Washington reporters Bart Jansen and Kevin Johnson on Twitter @ganjansen and @bykevinj and subscribe to access all of their stories for just $1 a week.

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