WASHINGTON – The House committee investigating the January 6 insurrection at the Capitol ramped up efforts Thursday to compel Steve Bannon to testify, coming down swiftly on the former Trump adviser who denied a congressional subpoena.
The committee scheduled a Tuesday hearing to vote on holding Bannon in congressional contempt.
“The Select Committee will use every tool at its disposal to get the information it seeks, and witnesses who try to stonewall the Select Committee will not succeed,” committee chairman Rep. Bennie Thompson, D-Miss., said.
The committee’s toolbox might be limited — with criminal contempt charges and civil enforcement used to force witnesses to testify — but experts said those could pack a heavy punch.
Unlike in the Trump era, Democrats have a potentially friendly Department of Justice that could take up prosecution of anyone who refuses to comply with a congressional subpoena.
Criminal prosecution, experts told USA TODAY, is the most powerful cudgel the committee wields in forcing witnesses to testify. Congress itself has the power to arrest and detain those who refuse subpoenas, but it hasn’t invoked that power since 1935, and experts said it was unlikely to happen now.
Bannon’s attorneys formally notified the committee of his intention to refuse investigators’ requests, citing executive privilege.
“The courts will not look favorably upon Bannon,” said Ryan Goodman, a law professor at New York University Law School and co-editor of JustSecurity. “Bannon is in deep legal trouble, because executive privilege would at best allow him to refuse to answer specific questions. The claim of executive privilege in no way shape or form allows a witness to refuse to show up at all.”
Rep. Jamie Raskin, D-Md., a member of the Jan. 6 commission, told USA TODAY if other witnesses also ignore their subpoenas, “We’ll take each case on their individual merits, but nobody has the right to blow off the Congress of the United States.”
The committee is planning on using criminal proceedings to compel Bannon, according to Democrats on the committee, if Bannon continues to refuse to comply.
“We reject [Bannon’s] position entirely,” Thompson continued in his statement. “The Select Committee will not tolerate defiance of our subpoenas, so we must move forward with proceedings to refer Mr. Bannon for criminal contempt.”
Raskin broke down the process to USA TODAY on Thursday, saying the committee would meet to consider a formal report recommending Congress hold Bannon in contempt.
The referral approved by the committee would then go to the House floor for a vote, Raskin said, and House Speaker Nancy Pelosi, D-Calif., “has the duty to refer it to law enforcement authorities” if it passes in the chamber.
“It’s a powerful tool so long as the House and the president are in the same party,” said W. Neil Eggleston, former White House counsel in the Obama administration and a lecturer at Harvard Law.
Unlike passing legislation, the referral for contempt only needs to pass one chamber of Congress to enforce a contempt citation.
The Department of Justice would decide whether to prosecute, and the courts would decide whether a violation occurred.
“If you don’t show up for a subpoena, and you just blow off a government order, that’s a crime,” said Raskin, who served as a lawyer and taught constitutional law before he was elected to Congress. “We are looking for him to be prosecuted (by the Department of Justice) for his refusal to turn over all information that he has about January 6.”
The threat of a criminal prosecution also could push Bannon and other witnesses to testify rather than face the potential penalties, said David Super, a Georgetown Law professor.
“The criminal process is not typically coercive, it’s punitive,” he said.
The committee also could pursue a civil lawsuit to force testimony.
That would open up the tools of the court, including the potential for U.S. marshals to jail a witness who ignores subpoenas until they agree to testify, Super said.
“Since they clearly want testimony more than they want jail time, you would expect they would want to pursue that route,” he said.
But Eggleston said a civil action could drag, and the House’s authority to pursue the civil route is “a little muddled” compared with the Senate, where it is spelled out in law.
“It’s much easier for Bannon or whoever to play this out under civil contempt than it would be under criminal contempt,” Eggleston said. “Among other things most people don’t want to get indicted. That can happen right after the case is referred to the Justice Department.”
Raskin noted this possibility as well, saying it is “the possibility of civil contempt, which is a lawsuit and then a court order to someone to comply with a subpoena. And if they don’t, they go to jail until they decide to comply.”
Congress also could use its own power to hold Bannon in contempt, but it hasn’t invoked what’s known as “inherent contempt” for nearly a century.
The last time it was used was in 1935, according to the Congressional Research Service.
Under inherent contempt, the Sergeant-at-Arms would bring an individual ignoring a congressional subpoena before the House and try them at the bar. That person could be imprisoned or detained until they agree to comply, but not past the end of a session.
While the Supreme Court has upheld that power of Congress in the past, Eggleston said it is unlikely they would use it now. Plus, Congress still would have to use the courts to enforce it.
Rep. Stephanie Murphy, D-Fla., a member of the committee, told MSNBC on Wednesday she expects the committee to enforce subpoenas to “the full extent of consequences that is available by the law.”
When pressed by MSNBC hosts about what that meant, Murphy explained, “I would recommend the full extent of consequences — jail time, fines. We need to make sure that these people understand that this is not acceptable,” Murphy said.
That same power could be used to impose fines on witnesses like Bannon who defy subpoenas, Goodman said, explaining that may be more effective.
“In many respects, harsh civil fines may be more of a deterrent to people like Bannon than the more remote threat of criminal sanctions,” he said.
‘Run out the clock’: processes take time with midterms approaching
Many of these processes take time — experts could not narrow down exactly how long — and the 2022 midterms are rapidly approaching; the committee could be racing against the clock.
Don McGahn, the former White House counsel for Trump, fought a House subpoena in federal courts for two years before negotiating a compromise to testify behind closed doors in May. A transcript was released days later.
The House Judiciary Committee sought McGahn’s testimony in May 2019 because he was a key figure in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.
It took years as the head of the Justice Department’s Office of Legal Counsel, Steven Engel, told then-White House counsel Pat Cipollone that McGahn and other advisers to the president could not be compelled to testify because they were protected by “absolute immunity.”
That immunity, which is similar to the concept of executive privilege like Bannon is claiming, is the key question here, Mark Graber, a Regents Professor at the University of Maryland’s Carey School of Law, told USA TODAY.
A possible important difference between McGahn and Bannon: McGahn was employed at the White House during the instances the House wanted him to testify on. Bannon was not working for the executive branch leading up to Jan. 6.
“It’s a lot stronger if you’re working for the executive department, than if you’re simply an independent contractor who is just someone the president calls, someone who would advise the president,” Graber explained.
Additionally, during Trump’s first impeachment trial, several White House aides refused to cooperate with House investigators. Democrats didn’t pursue subpoenas for them in court due to time.
A previous statement form the committee said though they welcome “good-faith engagement with witnesses seeking to cooperate with our investigation, we will not allow any witness to defy a lawful subpoena or attempt to run out the clock, and we will swiftly consider advancing a criminal contempt of Congress referral.”
If Democrats lose the chamber in 2022 before a deal or agreement is reached for Bannon’s testimony, it is unlikely they will hear it any time soon.
This article originally appeared on USA TODAY: Jan. 6 committee: How Congress can make witnesses comply