Democrats nudge attorney general on contempt of Congress decision

Attorney General Merrick Garland said DOJ will "apply the facts in the law and make a decision, consistent with the principles of prosecution"

Attorney General Merrick B. Garland arrives for the House Judiciary Committee oversight hearing for the Justice Department in the Capitol Visitor Center on Thursday. (Tom Williams/CQ Roll Call)
Attorney General Merrick B. Garland arrives for the House Judiciary Committee oversight hearing for the Justice Department in the Capitol Visitor Center on Thursday. (Tom Williams/CQ Roll Call)
Posted October 21, 2021 at 4:16pm

Democrats on the House Judiciary Committee used an oversight hearing Thursday to nudge Attorney General Merrick B. Garland on a pivotal upcoming decision — whether the Justice Department will pursue prosecution of former White House adviser Stephen Bannon for contempt of Congress.

When the hearing started, the House hadn’t officially voted to hold Bannon in contempt for refusing to comply with a subpoena from the House select panel investigating the Jan. 6 attack on the Capitol. The chamber later voted 229-202 to adopt the contempt resolution.

The next step would be for the U.S. Attorney's Office for the District of Columbia, part of the Justice Department, to decide whether to prosecute the misdemeanor charge that carries a penalty of up to a year in jail and a fine.

That federal prosecutor’s office has declined to prosecute in recent referrals for contempt of Congress. But those referrals were for current government officials who were in the same administration as the prosecutors.

The political pressure Garland faces around a decision on Bannon, a private citizen who was once part of the Trump administration, was already apparent at the committee.

Democrats knew better than to ask Garland what he would do, and instead nodded to the greater issues in the case about congressional power to investigate. And Garland largely stuck to his script, which was to not even hint at what the Justice Department might do.

“The Department of Justice will do what it always does in such circumstances; we’ll apply the facts in the law and make a decision, consistent with the principles of prosecution,” Garland said.

California Democratic Rep. Zoe Lofgren used her questioning to walk Garland through a series of court decisions and filings that would cut against claims from President Donald Trump and Bannon that documents are protected from subpoena by executive privilege.

That included a 1974 ruling that the executive privilege only covered communications between a president and close advisers only on official government matters. “I think the Supreme Court’s opinion is still good law, until it’s reversed, and I see no sign that it’s going to be reversed,” Garland replied.

And Lofgren pointed to a recent Justice Department filing that stated that conspiring to prevent the lawful certification of the 2020 election and inciting the riot at the Capitol would “plainly fall outside the scope of employment of an officer or employee of the United States of America.”

“I’m not going to ask you about what your department will do if the House of Representatives adopts a referral to your department, because I take you at your word that you will follow the precedent, you will follow the law in the ordinary course of events,” Lofgren said.

But she added that defense of the rule of law also means the rule of law for Congress. House Democrats have struggled with how to enforce congressional subpoenas in the past two years, when faced with obstruction from the Trump administration and officials.

“I thank you for your service to our country, and I look forward to your deliberations, so that the Congress of the United States can play its rightful role in defending our institutions and adopting legislation that will strengthen our institutions and preserve and protect our democratic republic,” Lofgren said.

Garland, in response to a question from Chairman Jerrold Nadler of New York on whether he would quickly consider any referrals, said that the Justice Department “recognizes the important oversight role that this committee, the House of Representatives and the Senate, play with respect to [the] executive branch.”

Nadler asked for Garland to follow the facts and the law in the Bannon referral “regardless of politics.”

“I ask only that you continue to follow the facts in the law where they lead, because although you have rightly brought hundreds of charges against those who physically trespassed in the Capitol, the evidence suggests that you will soon have some hard decisions to make about those who organized and incited the attack in the first place,” Nadler said in an opening statement.

Later in the hearing, Garland responded to a question about other Justice Department policies with a hint at the political squeeze an attorney general faces. He described how members of both parties have disagreed with his determinations.

“That comes with the territory. That’s what happens to the attorney general,” Garland said. “I’m doing my best to ensure that we make decisions on the facts and the law. When I said I would protect our people from partisan influence with respect to investigations and prosecutions, I meant that. And I continue to do that, regardless of which side of the aisle is criticizing me for it.”

Republicans on the committee largely focused their questions on Garland’s recent memo that ordered the FBI to meet with local officials nationwide within a month to “facilitate the discussion of strategies for addressing threats against school administrators, board members, teachers and staff.”

Republicans contended that the memo intimidated parents to suppress free speech and keep them from voicing concerns at school board meetings about the curriculum. Garland defended the memo as trying to prevent violence and threats of violence against a broad spectrum of public officials, including school officials.