Bannon, Garland and Contempt of Congress: Part II (The Bannon Contempt)

Steve Bannon, a close political associate of former President Trump who briefly served in the Trump White House in 2017, was indicted, convicted, and sentenced to a four-month prison term for contempt of Congress in connection with the investigation conducted by the January 6 select committee. He has been ordered to report to prison on July 1, which is today.

Andy McCarthy’s June 8 column on the Bannon case seems primarily aimed at convincing the sort of MAGA-adjacent types who might still read National Review that there was nothing untoward about the trial judge’s decision to order Bannon to prison. This decision resulted in what McCarthy euphemistically calls “gnashing of teeth” by MAGA leaders, including Bannon and Trump. Trump, for example, posted on Truth Social that sending Bannon to prison represented the “unAmerican Weaponization of our Law Enforcement” and then demanded, with his usual logical consistency, that members of the select committee themselves be indicted. Even more ominously, Mike Davis, the former Gorsuch clerk and Senate Judiciary Committee staffer turned weird MAGA personality, warned “Biden Democrats” on X that “[y]our glee will turn into terror after January 20, 2025” and “[r]evenge is best served cold.”

McCarthy points out (as I did to Davis) that the trial judge, Carl Nichols, is a Trump appointee and thus not a very likely participant in a conspiracy of “Biden Democrats.” He explains in some detail why Judge Nichols had treated Bannon fairly and, if anything, had bent over backwards to give him every benefit of the doubt. All this sounds reasonable to me and certainly much more plausible than the idea that Nichols is somehow involved in “weaponizing” the law against poor Steve Bannon.

Perhaps to make these unpalatable facts go down easier, however, McCarthy castigates the Justice Department and the select committee for prosecuting Bannon in the first place. This is where I have a serious disagreement. McCarthy’s position seems to be that Bannon was most likely guilty of the crime charged, but that his legal position was plausible or “arguably lawful” and that the proper and “normal” way to resolve this disagreement was through a civil action, rather than criminal prosecution. This position makes no sense to me.

Was Bannon’s Response to the Subpoena Plausible or “Arguably Lawful”?

Let’s begin with McCarthy’s suggestion that Bannon’s legal position was plausible or non-frivolous:

            There was a surface plausibility to Bannon’s claim that his refusal to comply with the J6 Committee subpoena was lawful. Former president Trump had publicly signaled his desire that former aides not cooperate with committee demands for arguably privileged information. The committee’s subpoena called for—among other things (an important caveat here)—testimony about communications with Trump that were arguably privileged under a very extravagant reading of dicta in Nixon v. Administrator of General Services (1977) (which maintained that executive privilege “survives the individual President’s tenure”).

(emphasis in original).

Here McCarthy is mushing together four separate questions in a way that is likely to lead all but the most sophisticated readers astray. First, did Bannon raise any plausible claims of executive privilege? Second, if in fact any of Bannon’s objections were meritorious (or simply non-frivolous), would this make his refusal to comply with the select committee’s subpoena lawful or even arguably lawful? Third, assuming there were any arguable executive privilege claims here, did Trump (a former president) have the authority to assert them? Fourth, did Trump in fact make a claim of executive privilege regarding Bannon?

To address these questions, we need to remember why the select committee subpoenaed Bannon in the first place. As explained in the committee’s contempt report:

            Mr. Bannon appears to have had multiple roles relevant to this investigation, including his role in constructing and participating in the “stop the steal” public relations effort that motivated the [January 6] attack, his efforts to plan political and other activity in advance of January 6th, and his participation in the events of that day from a “war room” organized at the Willard InterContinental Washington D.C. Hotel. Although he was a private citizen not employed by the White House at the time, he reportedly spoke with Mr. Trump directly regarding the plans for January 6th on at least one occasion. In short, Mr. Bannon appears to have played a multi-faceted role in the events of January 6th, and the American people are entitled to hear his first-hand testimony regarding his actions.

Resolution Recommending that the House of Representatives Find Steven K. Bannon in Contempt of Congress for Refusal to Comply with a Subpoena Duly Issued by the Select Committee to Investigate the January 6th Attack on the United States Capitol, H.R. Rep. No. 117-___, at 3 (Oct. 2021).

As McCarthy correctly suggests, the only conceivable claim of executive privilege that might apply here relates to the communications that Bannon may (or may not) have had with Trump in 2020 or early 2021, long after Bannon had left the White House and returned to private life. For purposes of analysis, we may assume that the president’s conversations with a private citizen may under some circumstances fall within the ambit of executive privilege. (An example would be if the president were to ask a private citizen traveling abroad to open a back channel to foreign powers). Presumably this is what McCarthy means when he says Bannon’s communications with Trump might be privileged under a “very extravagant” reading of Supreme Court dicta, although I am not sure.

However, even granting this premise, it cannot be enough for a private citizen merely to assert that he had conversations with the president. There must be some basis to believe that those conversations relate to the president’s performance of his constitutional functions in a way that warrants the protection of the qualified executive privilege recognized by the Supreme Court in United States v. Nixon. This is particularly true where, as here, there is good reason to believe that the communications, if any, related to the president’s political interests as a candidate for office, not his official functions. Because Bannon failed to articulate any basis for concluding that his communications with Trump should be entitled to even the qualified privilege recognized in Nixon, it is doubtful that there is even “surface plausibility” to his executive privilege claim.

More importantly, even if Bannon’s claim of executive privilege about communications with Trump was non-frivolous, his response to the select committee was still not even arguably lawful. That is because Bannon did not just refuse to answer particular questions (or produce particular documents) relating to his communications with Trump or any other subject. Instead, he failed to show up for his deposition at all. (Similarly, he failed to produce any documents or a privilege log asserting objections on a document by document basis). As the committee noted, Bannon’s counsel “flatly stated that Mr. Bannon would not produce any documents or appear at the scheduled deposition, as ordered by the lawful subpoena.” Bannon Contempt Report at 3. This fact eliminates any possibility of characterizing Bannon’s response as anything other than textbook contempt of Congress. See also id. (“[A]lthough the Select Committee is confident that [Bannon’s vague claims of executive privilege] could not bar any of its requests, there is no conceivable executive privilege claim that could bar all of the Select Committee’s requests or justify Mr. Bannon’s flat refusal to appear for the required deposition.”) (emphasis in original). Although McCarthy acknowledges “the committee’s subpoena called for lots of information that was not even arguably privileged,” he does not explain how then Bannon’s response to the subpoena could be considered even arguably lawful.

This brings us to questions 3 and 4. It may be conceded that Trump, as a former president, is entitled to assert executive privilege in at least some circumstances, and it is arguable (though in my view highly questionable) that this might extend to asking or authorizing Bannon to assert executive privilege in his congressional deposition. The problem is, as the select committee points out, Trump never informed the committee that he was invoking executive privilege with respect to Bannon at all. Bannon Contempt Report at 3. It is absurd to think that either the select committee or the Justice Department should take the fact that Trump “publicly signaled” that he did not want former aides generally to testify about “arguably privileged information” as the equivalent of a formal invocation of the privilege with respect to Bannon’s testimony. And again, Bannon did not just refuse to testify about “arguably privileged information,” he failed to show up at all, something that Trump’s lawyer expressly told Bannon’s lawyer he and his client did not agree with.

In short, of the four questions I laid out, Bannon has a colorable position on just one (whether Trump as a former president was entitled to assert executive privilege). If we are being extremely generous, we could give him two (accepting that his assertion of executive privilege with regard to communications with Trump was non-frivolous). But this is not enough to make his refusal to appear or produce documents arguably lawful.

Did the Committee and/or the Justice Department Act Improperly in Seeking to Prosecute Bannon?

Despite his frank acknowledgment of the weakness of Bannon’s legal position, which he says was “sure to lose if challenged in court,” McCarthy is even more scathing in his criticism of the select committee and the Justice Department for the decision to prosecute Bannon at all. He accuses the committee of “Trump-deranged norm-breaking,” says that the Justice Department “shredded its norms in order to prosecute Bannon at the insistence of an irregular, highly partisan congressional committee,” and terms the Bannon case as an example of “partisan-payback prosecutions” reflecting “the progressive-Democratic normalization of using criminal processes as political weapons.”

However, there is no Justice Department “norm” that prohibited prosecuting Bannon. McCarthy asserts that the prosecution was a “historic departure,” but he fails to explain what he thinks it is a departure from. Historically the Justice Department almost always prosecuted witnesses certified by the House or Senate for contempt, even when they asserted solid privileges or defenses that ultimately were accepted by the courts. See Representation of Congress and Congressional Interests in Court, Hearings Before the Subcomm. On Separation of Powers of the Senate Comm. on the Judiciary, 94th Cong., 2d sess. At 8 (Dec. 12, 1975 & Feb. 19, 1976) (“I know of no instance in which a legally sufficient certification pursuant to 2 USC 194 has been refused presentation to a grand jury.”) (testimony of the Hon. Rex E. Lee, Ass’t Att’y Gen. for the Civil Division). When the Justice Department refused to prosecute EPA Administrator Anne Gorsuch in the early 1980s, it was arguably a “historic departure” from this baseline norm, although OLC maintained there were a handful of prior occasions on which contempt citations had not been presented to a grand jury despite the “seemingly mandatory” language of the contempt statute. Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 120 & n. 24 (1984). Still, OLC stopped well short of claiming a broad discretion to refuse to prosecute contempt of Congress for any reason, concluding only that in the “narrow and unprecedented circumstances presented here . . . the contempt of Congress statute does not require and could not constitutionally require a prosecution . . . .” Id. at 142.

Bannon’s case does not fall within those narrow circumstances or anywhere close to them. He was subpoenaed  for information about his activities as a private citizen, not as an executive official; he lacked a plausible claim of executive privilege for most (if not all) of this information; his refusal to comply with the subpoena was not in accordance with the instructions of the president (or even the former president); and he was not acting in accordance with the legal advice of the attorney general. Each of these facts sets him apart from any of the cases in which the Justice Department has refused to prosecute in accordance with the OLC’s view that such prosecutions would be unconstitutional. Whatever the merits of the OLC’s view with respect to prosecution of the EPA administrator and others similarly situated, it clearly was not unconstitutional to prosecute Bannon, as Judge Nichols and the D.C. Circuit correctly found. McCarthy does not appear to claim otherwise.

On at least one occasion the Justice Department has refused to prosecute a witness for contempt of Congress for other reasons. Specifically, it refused to prosecute Lois Lerner, who invoked her privilege against self-incrimination before a House committee, on the ground that it did not agree with the House that Lerner had waived her Fifth Amendment rights. Perhaps McCarthy agrees with this decision (I do not), but it would only help Bannon if the Justice Department thought his claim of privilege were valid, which it clearly (and correctly) did not. To the contrary, as explained earlier, Bannon’s refusal to comply with the subpoena was not even arguably lawful. Thus, the only “norm” which could support a Justice Department refusal to prosecute Bannon would be one in which it simply ignores all contempt of Congress certifications. This has never been the department’s practice or position, nor could it be consistent with the mandatory language of the statute or the rule of law.

Furthermore, there is no congressional “norm” that the House will proceed against recalcitrant witnesses by way of civil lawsuit in lieu of criminal contempt. This is true even in cases where, unlike Bannon’s, the House knows the Justice Department will not prosecute. We can see this in the most recent congressional contempt case, involving Attorney General Garland, where the House voted to certify the contempt even though there is no chance the Justice Department will refer the matter to a grand jury, much less proceed with an indictment. McCarthy (somewhat) laments this act as an exercise in futility, but he does not accuse the Republican-controlled House of “Biden-deranged norm-breaking” because it failed to proceed by a way of a civil suit rather than criminal contempt. As well he should not, because this is the House’s normal practice and not whatever McCarthy imagines it to be.

The House has only filed civil enforcement suits against witnesses who were represented by the Department of Justice and whom it knew the department would not be prosecuting for criminal contempt. And even in those cases, with a single exception, the House also certified criminal contempt pursuant to 2 USC 194. Thus, the notion it was “norm-breaking” to cite Bannon for criminal contempt, rather proceeding by way of civil suit, is completely fanciful.

The only occasion on which the House has ever proceeded by way of civil suit in lieu of criminal contempt was in the 2019 case of Don McGahn, the former White House counsel, who refused to appear to testify before a House committee on the ground that he was entitled to absolute immunity, in accordance with the instruction of President Trump and an OLC opinion. For reasons that I explained here (before the House brought suit to enforce the McGahn subpoena), the McGahn case presented uniquely favorable circumstances for a House civil suit. There are two reasons why the House (or the House counsel) may have decided to try a civil suit before proceeding with criminal contempt: (1) the absence of a pending criminal contempt could provide at least atmospheric support for a court to reach the merits of the civil case; and (2) there was reason to believe that McGahn would be more cooperative if a criminal contempt was held in abeyance. Regardless of the explanation, the McGahn case is an outlier with respect to the House’s practice both before and afterward. It did not establish a new norm even with respect to witnesses in McGahn’s position (i.e., executive branch witnesses like Gorsuch, Harriet Miers, Joshua Bolten, Eric Holder, William Barr, and Merrick Garland), which Bannon was not.

It is worth noting that when the House brought suit against McGahn, McCarthy did not commend it for trying to resolve an interbranch privilege dispute in the proper and “normal” manner. To the contrary, he was sympathetic to the Justice Department’s argument that “the court should stay out of this dispute between the political branches” because the Constitution “gives those branches, particularly Congress, their own arsenals for battling over access to executive information.” Furthermore, he pointed out (with reason) that the use of civil litigation to resolve congressional subpoena issues was a “prescription for endless delay” that was unlikely to provide Congress with information within any time frame in which it would be useful.

McCarthy suggests that the January 6 committee did not want to rely on civil litigation because it was “in a rush to push out a damning report against Trump.” It is true that the select committee had a limited lifespan and needed to complete its work by the conclusion of the 117th Congress. But this is hardly unusual for a congressional committee, which will almost always be seeking to obtain information on an expedited basis so that it can be used for hearings and reports within the two-year timeframe of a single Congress. The chairman of another select committee once described civil litigation to enforce subpoenas as “a laborious, slow process and counterproductive to the goal of an expeditious investigation.” Final Report of the Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi, H.R. Rep. 114-848, at 399 (Dec. 7, 2016) (remarks of Chairman Trey Gowdy). Maybe things would be different if Congress had acted on the Benghazi committee’s recommendation to create a streamlined civil enforcement process (or another advanced by yours truly), but such was not the case. See id. at 401 (noting “[a]n investigation delayed by years of legal deliberations does not allow Congress to make timely legislative decisions”).

Even if the process were expedited, though, proceeding against Bannon by way of civil suit probably would not have made sense for the select committee. In her memoir of the January 6 investigation, select committee member Liz Cheney describes the House counsel’s concern that “efforts at civil enforcement of a subpoena could fail” because of “an unfavorable DC Circuit decision in an unrelated case.” Liz Cheney, Oath and Honor: A Memoir and a Warning 224 (2023). This presumably refers to the D.C. Circuit panel decision in the McGahn case, which held that the House (unlike the Senate) lacks statutory authorization to bring civil suits. See Comm. on the Judiciary v. McGahn, 973 F.3d 121 (D.C. Cir. 2020), vacated pending reh’g en banc, No 19-5331 (Oct. 15, 2020). Although this decision was ultimately rendered moot by a settlement prior to rehearing en banc, the Justice Department made clear that it would continue to argue that the House cannot bring civil enforcement actions under current law. Furthermore, while the D.C. Circuit has held that the House has the constitutionally required standing to bring such suits, it remains open for any defendant to seek Supreme Court of that issue as well. The House would be understandably reluctant to take these litigation risks in a case like Bannon’s, particularly when one considers there was no guarantee that Bannon would even obey a final court order that he comply with the committee’s subpoena.

The implication that the Bannon contempt was some sort of political vendetta borders on absurdity. Bannon was clearly a key witness regarding the matter the January 6 committee was investigating. There is no reason to doubt that the committee genuinely wanted to get this information, and that it would have much preferred getting the information to holding Bannon in contempt. In our tribalistic world, even respectable political figures no longer care much about being held in contempt; the idea that someone like Bannon would suffer political or reputational damage is laughable. And while it was no doubt an easy vote politically for Democrats to vote in favor of contempt and for Republicans to vote against it, a total of nine Republicans (including Cheney and fellow select committee member Adam Kinzinger) voted in favor of the contempt certification. Only one of these members remains in Congress (the crafty Nancy Mace). By contrast, the only two Republicans who voted for Trump’s impeachment and did not lose their seats (Dan Newhouse and David Valadao) both voted against the Bannon contempt. Cheney, Kinzinger and the other Republicans who voted for contempt clearly did so knowing that it was against their political interests to do so. Cheney says (and I think this is highly credible) that many Republican members told her that they would vote against the resolution for reasons having nothing to do with the merits. Oath and Honor at 227. The idea that it was Cheney and other Republican supporters of the contempt resolution who were engaged in “norm-breaking” simply defies reality.

There was, however, some serious norm-breaking by the Justice Department in connection with the January 6 committee contempt certifications. It just did not involve the Bannon case. Instead, it involves another contempt certification that McCarthy mentions in passing—that of former Trump White House Chief of Staff Mark Meadows.

Like Bannon, Meadows was a key witness to the events of January 6. Indeed, he was perhaps the most important witness other than Trump himself. Like Bannon, however, Meadows refused to appear to testify before the January 6 committee and answer any questions, even about matters which were clearly non-privileged. As a result, the committee reported his contempt to the House, which certified it for criminal prosecution under 2 U.S.C. § 194, just as in Bannon’s case. However, unlike Bannon, the Justice Department refused to prosecute Meadows.

There were, to be sure, differences between the two cases. Meadows was a top ranking White House aide at the relevant times, unlike Bannon. As a result, Meadows would have been entitled to “absolute immunity” from congressional questioning (in the Justice Department’s view, of course) if (1) the questioning entirely related to Meadows’s official duties; (2) Meadows had been summoned to testify while Trump was still in office; (3) the attorney general had advised that Meadows was entitled to invoke absolute immunity; and (4) the president had directed Meadows to invoke absolute immunity in accordance with this advice. Moreover, while Trump did not invoke any privileges directly with the select committee for Meadows, his lawyer did write a letter to Meadows’ lawyer which arguably purported to authorize Meadows to invoke absolute immunity, although it was written in a vague enough manner to give Trump plausible deniability on the question.

Despite these distinctions, Meadows clearly committed contempt of Congress, even if not as blatantly as Bannon. At the outset, “absolute immunity” is a doctrine entirely made up by the Justice Department, which has been rejected by every court to consider it. Moreover, it makes no sense even in its own terms to apply it to former staffers, although the Justice Department has nonetheless previously asserted it for former staffers of the current president. But in all of those previous cases the attorney general advised that the former staffer could invoke absolute immunity and the (current) president specifically instructed the former staffer to invoke it. Here there was no such advice and President Biden not only failed to instruct Meadows to invoke the immunity, he explicitly determined that he would not invoke immunity or executive privilege in connection with Meadows’ testimony before the select committee. Despite this determination by the sitting president, Meadows chose not to appear before the committee based on the ambiguous authorization of the former president.

The Justice Department nonetheless did not prosecute Meadows for contempt of Congress. Although it has never to my knowledge directly explained this decision, one can discern the reason from a brief it filed in federal court in 2022. The department begins by reaffirming its prior opinions that “Congress may not compel current and former immediate advisers to a sitting President to testify about their official duties.” But it fails to address the fact, pointed out by the select committee in its contempt report on Meadows (see pages 23-24), that many of the subjects about which Meadows was to be questioned did not involve his official duties at all.

The Justice Department brief then goes on to contend that a former adviser to a former president should also be entitled to testimonial immunity, but only a qualified (rather than absolute) immunity. Under this new doctrine (never before addressed by an OLC opinion), such a former adviser may refuse a subpoena to testify before a congressional committee unless there has been “a sufficient showing of need or the immunity has been waived.” The department also says that the determination of whether the immunity should be asserted should be made by the sitting president, rather than the former president, but it treats this as an open question which the court need not resolve (and suggests that there may even be “extraordinary circumstances” where the former president’s determination might prevail). Instead, it argues that Meadows’ immunity claim should be rejected because the select committee had made a sufficient showing of need, pointing to the “immense importance” of the committee’s investigation the fact that Meadows “has not seriously disputed the importance of his testimony,” the determination by President Biden that the public interest supported disclosure to the committee, and the holding of the D.C. Circuit that the committee’s need for this type of information was sufficient to overcome executive privilege. See Trump v. Thompson, 20 F.4th 10 (D.C. Cir. 2021).

Given these conclusions, how could the Justice Department not prosecute Meadows? Probably because the department assumes that he is entitled to qualified immunity and that Trump has authorized or instructed him to invoke it (even though, as the select committee notes, Trump never actually communicated directly with the committee itself). Therefore, Meadows was faced with conflicting determinations by the sitting and former president as to whether there was a sufficient showing of need and, because there is some possibility (however remote) that the former president’s determination might prevail, he could not be expected to resolve this conflict on pain of possible prosecution. Even though it finds that Meadows is wrong on the merits of the immunity claim, and the department must give him every possible benefit of the doubt to make his assertion even remotely plausible, it nonetheless is, apparently, close enough for government work.

The Meadows decision puts the lie to any suggestion that the Biden Justice Department somehow broke or stretched norms to prosecute witnesses like Bannon. On the contrary, it bent over backwards to not prosecute Meadows (and another similarly situated witness), putting its own self-interest (and that of the executive branch generally) above the clear mandate of the contempt statute and the needs of a congressional investigation of “immense importance.”

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