A week ago, the House select committee on Jan. 6 took the first steps toward holding Donald Trump adviser and proud racist Steve Bannon in contempt for failing to turn over documents requested under subpoena. The committee then followed up with a letter to Bannon’s attorney making it clear that not cooperating with an investigation into the attempted overthrow of the American government was not an option. On Tuesday evening, as The New York Times reports, the committee made the next step by voting unanimously to recommend that the House hold Bannon in criminal contempt of Congress. The issue will now go before the full House, where a vote is expected on Thursday.
Refusal to comply with congressional subpoenas is certainly not a new thing for the former members of the Trump White House. During the investigation of connections between the Trump campaign and Russia, Trump’s first impeachment for the attempted blackmailing of the Ukrainian president, and Trump’s second impeachment for his connection to the Jan. 6 insurrection, nearly everyone who worked for Trump refused to cooperate—on orders from Trump, who routinely claimed some form of executive privilege. In many cases, Trump didn’t actually issue such a claim, but simply instructed those connected with him to clam up on the basis that he could claim privilege if he wanted to.
It’s a tactic that worked for Bannon the last time he was subpoenaed by Congress. But there are multiple reasons that won’t work this time.
During Trump’s time at 1600 Pennsylvania Avenue, the infuriating refusal to cooperate with the most basic inquiries forced Congress to issue multiple subpoenas and declare a number of Trump staffers to be in contempt. That included Bannon, who in 2018 was subpoenaed by the House Intelligence Committee. Like so many others, Bannon informed the committee that Trump had told him to claim executive privilege, leading that committee to recommend Bannon be held in criminal contempt.
But until President Biden moved into the White House, there was an additional problem: the Department of Justice (DOJ). Under both Jeff Sessions and William Barr, the DOJ simply sat on Congressional contempt charges rather than moving them forward. In fact, Barr himself was the subject of one of those contempt charges. As a result, Congress had to go to court fighting not just the White House, but the DOJ, which used every possible delaying tactic to see that contempt charges were pointless.
With the Justice Department fighting on Trump’s side and courts repeatedly shying away from stepping into the space between Congress and the executive, even those occasions when House did move forward with contempt charges generated little effect. The futility was such that even getting the full House to support charges against Trump supporters like Bannon became difficult since many members of the House saw the effort as only generating a signal of congressional weakness.
However, as the House moves toward a Thursday vote, it does so knowing that two very big things have changed.
First, Trump can make no claim of executive privilege because he’s not the executive. In some cases, sitting presidents have moved to protect conversations and documents of former White House residents, but in this case Biden has already made it clear he is not shielding any of the requested documents or testimony related to Jan. 6. So Bannon’s claim that he is refusing to testify due to executive privilege has absolutely no basis in law.
Second, Barr is no longer at the DOJ. So the assumption at least is that Attorney General Merritt Garland will act with Congress rather than against it. Congress, the White House, and the DOJ all insist that Bannon must turn over the documents and testify, or face the consequences of criminal contempt—a charge that could net Bannon six months in federal prison.
Bannon’s participation in the committee investigation is particularly important because he was not only involved in directly planning on disruption of Jan. 6 events with Trump and other members of the White House staff, but he also indicated on a radio broadcast that he expected “all hell” to break loose on that day. Bannon was one of those who targeted Jan. 6 for action. He was a participant in a “war room” planning how Trump and his allies would move on that day. His statements show that he anticipated—and may have helped plan—violence.
Bannon’s testimony is vital to the investigation. And moving forward swiftly with charges of criminal contempt against Bannon is vital to showing other members of Trump’s inner circle that the era in which they can get away with literally anything, knowing that Trump will throw them some form of protection, is over.