Capitol riot committee recommends criminal contempt for Bannon

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The House committee investigating the 6 January Capitol insurrection voted unanimously on Monday to hold former Trump administration official Steve Bannon in contempt for refusing to comply with a subpoena for documents and testimony concerning the worst attack on the US Capitol since Major General Robert Ross ordered its burning in 1814.

Speaking from the dais of the ornate Cannon Caucus Room — the room used by the House Committee on Un-American Activities in the 1940s and 1950s — each of the committee’s seven Democrats and two Republicans voted to adopt a report recommending that Mr Bannon “be found to be in contempt of Congress for failure to comply with a congressional subpoena,” and directing House Speaker Nancy Pelosi to “certify” the report “to the United States Attorney for the District of Columbia, to the end that Mr. Bannon be proceeded against in the manner and form provided by law”.

“it’s a shame that Mr. Bannon has put us in this position, but we won’t take no for an answer” said Representative Bennie Thompson, the committee’s chairman. “We believe Mr. Bannon has information relevant to our probe, and we’ll use the tools at our disposal to get that information. I expect that the House will quickly adopt this referral to the Justice Department and that the U.S. Attorney will do his duty and prosecute Mr. Bannon for criminal contempt of Congress”.

Mr Thompson said it was “shocking” that “anyone would not do anything in their power” to assist an investigation into “a violent attack on a seat of our democracy perpetrated by our fellow citizens on our Constitution and an attempt to stop the certification of an election”.

“Mr. Bannon stands alone in his complete defiance of our subpoena. That’s not acceptable. No one in this country, no matter how wealthy or how powerful, is above the law. Left unaddressed, this defiance may encourage others to follow Mr. Bannon down the same path,” he said.

Wyoming Representative Liz Cheney, the committee’s vice-chair and one of two Republicans serving on it, said the committee’s investigation has shown that Mr Bannon “appears” to have had “substantial advance knowledge of the plans for January 6th and likely had an important role in formulating those plans”.

“Mr Bannon was in the war room at the Willard on January 6th.  He also appears to have detailed knowledge regarding the President’s efforts to sell millions of Americans the fraud that the election was stolen.  In the words of many who participated in the January 6th attack, the violence that day was in direct response to President Trump’s repeated claims—from election night through January 6th—that he had won the election,” Ms Cheney said. “The American people are entitled to Mr. Bannon’s first-hand testimony about all these relevant facts, but Mr Bannon is refusing to provide it. She then added that Mr Bannon’s refusal to comply with the subpoena left the committee “no choice but to seek consequences”.

The conservative podcast host, who served as White House Chief Strategist for seven months in 2017, was served with the subpoena last month, and had been ordered produce documents and appear for a deposition before the committee on 8 October.

But in a 13 October letter to Mr Thompson, Mr Bannon’s attorney said his client, acting on orders from attorneys for former President Donald Trump, would “not be producing documents or testimony” until a judge orders him to do so or an agreement is reached with the former president, who claims that his conversations with Mr Bannon are shielded by executive privilege, a legal doctrine which protects certain communications between a president and his advisers.

Most legal experts say Mr Bannon’s claim that he is honouring a legitimate privilege has no validity because Mr Trump, whose term ended in January, lost the right to invoke it when President Joe Biden was sworn in as his successor.

“If Mr Bannon wants to show up and plead the 5th Amendment because he will incriminate himself, he has that constitutional right,” Rep Jamie Raskin of Maryland told reporters after the vote. “We, of course, have the authority to offer him use immunity so that we wouldn’t use any evidence against him directly. That’s been well-established by the Supreme Court.”

Mr Raskin said the vast majority of people the committee subpoenaed have complied with the law and he hoped others would do so as a matter of legal and civic duty.

“A lot of people want to come forward and feel terrible about the role that they played,” he told reporters.

Rep Adam Schiff, who also serves as the chairman of the House Intelligence Committee, said he hoped other Republicans would vote to hold Mr Bannon in contempt.

“Members are going to have to ask, do they want Congress to be able to conduct its oversight, or are they so beholden to this deeply flawed former president that they’re going to repudiate their oversight powers because really, that’s what stake here,” Mr Schiff said.

So far, Mr Biden has declined to use executive privilege to shield Trump-era records from the committee, citing what White House Press Secretary Jen Psaki called the “unique and existential threat” posed by the former president’s attempt to overturn the 2020 election, which culminated in the pro-Trump mob storming the Capitol in hopes of disrupting certification of the 2020 electoral college results.

Experts also say that even if Mr Trump could claim the privilege, it would not apply to Mr Bannon because he is a private citizen who was not part of the Trump administration during the time under investigation by the committee.

Regarding those claims of privilege, Ms Cheney said Mr Bannon’s and his former boss’ arguments “appear to reveal one thing”.

“They suggest that President Trump was personally involved in the planning and execution of January 6th,” she said. “We will get to the bottom of that”.

Although Monday’s vote increases the likelihood that Mr Bannon will face criminal charges for contempt of Congress, it is only the first of several steps that must be completed before the former Trump adviser would appear in the dock to face up to a year in jail and a fine of up to $100,000.

Before Ms Pelosi can “certify” the report to the Justice Department, it must be approved by a vote of the full House.

Maryland Representative Steny Hoyer, the House Majority Leader, said Tuesday morning that he would “wait to see” what the committee did at this evening’s meeting, and would make a decision on when to bring the measure up for a vote when it was clear what the committee was asking for.

Earlier on Tuesday, Mr Thompson told The Independent that he hopes his colleagues will vote to hold Mr Bannon in contempt when the matter comes to the House floor.

“It’s not ‘do you support that committee or not?’ It’s ‘do you support the subpoena process that members of Congress through committees have,’” he said.

But even if the full House of Representatives votes to hold Mr Bannon in contempt, the question of whether he will face criminal charges remains up to the Department of Justice and Attorney General Merrick Garland.

Although the section of the United States Code that spells out the procedure for charging a person with criminal contempt of Congress says that a referral “shall” be presented to a grand jury for possible indictment, the Justice Department has generally refrained from prosecuting current or former executive branch officials based on referrals from Congress.  

The last time a person faced such charges was 1983, when a jury found Reagan administration official Rita Lavelle not guilty of disobeying a congressional subpoena.

Last week, Mr Biden told reporters that he hoped Mr Bannon and other recalcitrant witnesses should face charges for defying congressional subpoenas, prompting Justice Department spokesperson Anthony Coley to push back on the president in a statement.

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

Mr Raskin, who served as the lead House manager during Mr Trump’s second impeachment trial earlier this year, told The Independent that attempts by Mr Trump and his allies will not dissuade the committee, which he said is the “most unified” committee he has served on during his time in Congress.

“This is really how government should work,” Mr Raskin said. “It’s bipartisan, but it’s not bipolar”.

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