Former White House adviser Stephen Bannon was indicted Friday on two counts of contempt of Congress for not complying with a subpoena from the House select committee investigating the Jan. 6 attack on the Capitol, an action that will put others refusing to cooperate with the inquiry on notice.
The move comes more than three weeks after the House voted to refer the matter to the Department of Justice. Bannon, 67, faces one contempt charge for refusing to appear at a scheduled deposition with the panel and another for not producing records.
Each charge carries a maximum one year in jail and a $1,000 fine. Even if Bannon is convicted and jailed, that would not force him to disclose the information sought by the Jan. 6 select committee.
“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,” select committee Chairperson Bennie Thompson, D-Miss., and Vice Chair Liz Cheney, R-Wyo., said in a statement.
The subpoena identified 17 categories of “documents and communications” and told Bannon to appear before the panel on Oct. 14 for a deposition. Bannon did not do either.
“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. “Today’s charges reflect the Department’s steadfast commitment to these principles.”
By not cooperating with the Jan. 6 committee’s subpoena, Bannon was withholding information “critical” to its investigation, the panel said when it recommended contempt to the House.
The Department of Justice’s decision to charge Bannon, a former White House official in the Trump administration who was a private citizen on Jan. 6, bolsters congressional subpoena authority and could convince others who have been reticent to comply to do so, particularly those who were private citizens at the time of the insurrection.
The indictment points out that Bannon was a private citizen, who had not worked for the Trump administration or federal government since he left the White House as chief strategist and counselor to President Donald Trump in 2017. Bannon, through his lawyer, told the select committee he was unable to comply with the subpoena until executive privilege claims by Trump are resolved.
Unlike Bannon, former White House Chief of Staff Mark Meadows, who has also refused to cooperate with the select panel by their Friday deadline, was not a private citizen at the time of the Capitol attack.
Thompson and Cheney said they are now compelled to consider contempt or other avenues to enforce the Meadows subpoena. That could include a civil action brought against Meadows in his personal capacity.
“Mr. Meadows’s actions today — choosing to defy the law — will force the Select Committee to consider pursuing contempt or other proceedings to enforce the subpoena,” Cheney and Thompson said in a statement. “If his defiance persists and that process moves ahead, the record will reveal the wide range of matters the Select Committee wished to discuss with Mr. Meadows until his decision to hide behind the former President’s spurious claims of privilege. Many of those matters are not even conceivably subject to any privilege claim, even if there were one.”
Randall Eliason, a former federal prosecutor and law professor at George Washington University, said Friday that a decision on Bannon in three weeks “is basically lightning speed for DOJ when you are dealing with something as sensitive and potentially legally complex as indicting a former senior White House official.”
But the criminal case could take a few months or longer, depending on how fast the prosecutors or the judge want to move the case, Eliason told CQ Roll Call. Bannon’s defense could include motions about whether he was following Trump’s claims about executive privilege or that Bannon was relying on the advice of his lawyer when he didn’t comply with the subpoena.
“This is just about punishment, so it’s still not going to result in him getting before that committee and that committee learning what he knows,” Eliason said. “If they want to do that, they’ve got to file a parallel civil suit, to get a court order compelling them to actually go testify.”
Prosecutors did not wait for the completion of Trump’s lawsuit to stop the release of White House records to the House select committee, which might shed more legal certainty on that question and how it might play into a criminal case.
A panel of the U.S. Court of Appeals for the District of Columbia Circuit is set to hear oral argument Nov. 30 on Trump’s lawsuit. It’s unclear when that panel might rule, but the losing side is expected to ask the Supreme Court to quickly rule. Trump’s lawyers contend, among other arguments, that he can assert executive privilege over the documents. That privilege is meant to protect a president’s ability to get candid advice without the threat that those conversations will quickly become public.
But Biden, as the current president, decided not to assert executive privilege over the documents the House select panel requested. A lower court ruled that judges shouldn’t second guess a president's determination on that. This is the first time in the past 40 years that the courts are being asked to decide a case in which a former president asserts executive privilege over White House records when the sitting president has refused to do so, that judge wrote.
The House has held six executive branch officials in criminal contempt of Congress since 2008 for denying a committee information subpoenaed during an ongoing investigation — but prosecutors up until now have declined to file charges.
Rep. Jamie Raskin, a member of the Jan. 6 panel, said that the indictment shows that “even the insurrectionist allies of Donald Trump are not above the law and the American justice system is back in business.”
“Violate Congressional subpoenas and court orders at your own risk,” the Maryland Democrat tweeted.