WASHINGTON – Steve Bannon, former President Donald Trump’s political strategist, was indicted by a grand jury Friday on two charges of criminal contempt for defying a House subpoena.
The Department of Justice’s decision to charge Bannon came after the House committee investigating the Jan. 6 insurrection at the Capitol subpoenaed Bannon and others for documents and testimony about what led to the riot.
“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 announcing the indictment. “Today’s charges reflect the department’s steadfast commitment to these principles.”
A criminal prosecution is a more serious escalation than the House’s civil enforcement of subpoenas during the wide-ranging investigations of the Trump administration.
Such prosecutions are rare and typically a settlement is negotiated to avoid them, according to a nonpartisan Congressional Research Service report. Litigation could take months or years.
Bannon, 67, is charged with one contempt count involving his refusal to appear for a deposition and another involving his refusal to produce documents, despite a subpoena from the House committee. An arraignment date hasn’t yet been set in the U.S. District Court. Each count carries a minimum of 30 days and a maximum of one year in jail, as well as a fine of $100 to $1,000.
Bannon, who didn’t work for the executive branch at the time was in contact with Trump in the days leading up to the attack on Jan. 6. Bannon’s lawyers told the committee in a letter Oct. 7 that Trump instructed him not to cooperate because the former president would fight disclosure under executive privilege – despite Bannon not working for the government.
The House committee voted Oct. 19 to urge a prosecution for criminal contempt. The House then voted Oct. 21 to approve the criminal citation and refer the case to the department for possible prosecution.
“No one in the United States of America has the right to blow off a subpoena by court or by the United States Congress,” Rep. Jamie Raskin, D-Md., who taught constitutional law at American University for more than two decades, said after the vote. “If Mr. Bannon wants to show up and plead the Fifth Amendment because he will incriminate himself, he has that constitutional right.”
Raskin said the committee could offer Bannon immunity so that his testimony wouldn’t be used against him in a criminal trial.
President Joe Biden complicated the case by saying the department should prosecute Bannon and others. He acknowledged that he shouldn’t have said it, but that he answered a question honestly.
Biden told reporters Oct. 15 he hoped the committee “goes after” people who defy subpoenas “and holds them accountable criminally.” Asked whether they should be prosecuted, Biden replied: “I do, yes.”
Biden told a CNN town hall Oct. 21 that what he said wasn’t appropriate. He said the department would make its own decision about whether to prosecute.
“I did not, have not, and will not pick up the phone and call the attorney general and tell him what he should or should not do in terms of who he should prosecute,” Biden said.
Jack Goldsmith, a Harvard law professor, tweeted that any prosecution of Bannon, which he considered legally justified, “will be tainted by Biden’s remark.”
Prosecutions for criminal contempt of Congress are relatively rare, with the 1857 statute wielded primarily as a deterrent. The potential punishment is a year in jail and a $1,000 fine.
Here are summaries of cases during the last 40 years of criminal contempt citations:
In 1982, two House committees subpoenaed the head of the Environmental Protection Agency for documents related to enforcement of the Superfund law. Administrator Anne Burford refused to disclose under the documents under direction of President Ronald Reagan as protected by executive privilege. The House approved a criminal contempt citation, but the U.S. attorney refused to present the case to the grand jury. The committees eventually reached agreements to receive access to documents and effectively withdraw the contempt citation.
In 2007, the House Judiciary Committee subpoenaed former White House counsel Harriet Miers and chief of staff Joshua Bolten for testimony and documents about the dismissal of U.S. attorneys under President George W. Bush, who asserted executive privilege. The attorney general declined to prosecute either official for criminal contempt. The House sued for compliance and after two years of litigation reached a settlement for documents and testimony from Miers in a closed but transcribed hearing.
In 2012, the House Oversight and Government Reform Committee sought documents from Attorney General Eric Holder about the “Fast and Furious” investigation into firearms trafficking. The Justice Department notified the committee it wouldn’t take action on a criminal contempt charge, based on executive privilege and prosecutorial discretion. The committee sued to enforce the subpoena and a federal District Court instructed the department to comply with the subpoena in 2016.
In 2013, former Internal Revenue Service official Lois Lerner invoked her Fifth Amendment right against self incrimination about the scrutiny of tax exempt groups, after making an opening statement before the House Oversight committee. About 10 months later, the House approved a criminal contempt citation, but the U.S. attorney said she hadn’t waived her Fifth Amendment rights and wouldn’t be prosecuted.