Congress may be right to cite Bannon for contempt — but Justice would be wrong to prosecute

It has become a Democratic article of faith — or, at least, of hardball politics — that the Jan. 6 Capitol riot, known as “the insurrection” in the party’s incessant messaging, is a uniquely horrific event in the nation’s history, justifying uniquely draconian legal and political responses.

The Biden administration and congressional Democrats have taken this demagogic premise to predictable excess. The Capitol riot must have its own special investigative committee, while the far more extensive and lethal rioting by the radical left following George Floyd’s May 2020 killing has been ignored. To project fear of an imminent mass-murder threat from “white supremacists” (which is Democratese for “Trump supporters”), the Biden administration for months kept about 10 times more U.S. armed forces personnel on guard in the Capitol than it had stationed in Afghanistan, even as the Taliban was overrunning the U.S.-backed government in Kabul. 

Democrats even continue to insist that several people, including security officers, died in the Jan. 6 uprising. To the contrary, there is no evidence of, and no charge alleging, any riot-caused police killings. One officer died of natural causes later; four committed suicide in the ensuing months. The only killing clearly attributable to the riot was that of unarmed Trump supporter Ashli Babbitt, who was shot by Lt. Michael Byrd of the Capitol Police, a killing the Department of Justice (DOJ) has deemed justified but over which the Babbitt family is said to be planning a wrongful death lawsuit. 

Now, the House has taken the understandable, though legally debatable, step of holding former Donald Trump adviser Steve Bannon in contempt for defying a subpoena from the J-6 Committee. It thus falls to the Biden Justice Department, to whom the House has referred the matter, to decide whether to prosecute Bannon on criminal charges. The DOJ would be well advised to steer clear of the controversy, though whether it will is hard to predict. On Attorney General Merrick Garland’s watch, the department has joined itself at the hip with the Democrats’ J-6 partisanship.

Garland has absurdly described the Capitol riot as a greater threat to the United States than terrorist mass-murder attacks — including 9/11, in which nearly 3,000 Americans were killed, and the 1995 bombing of the federal courthouse in Oklahoma City, an atrocity in which nearly 180 Americans were killed in the facility’s destruction, and of which Garland himself supervised the investigation as a Clinton DOJ official. 

Under Garland, a zealous Justice Department dragnet has resulted in charges against more than 600 people in connection with the riot. The majority are nonviolent loiterers with sparse criminal records, against whom charges would be deferred and dismissed in a normal case. Simultaneously, the same Biden DOJ has turned a blind eye to the radical left’s months of rioting. The same Biden DOJ just gave a sweetheart plea deal to two Ivy League-educated leftist lawyers who hurled Molotov cocktails at a police vehicle during that mayhem. And the same Biden DOJ is threatening to sic the FBI on parents who dare to protest against progressive indoctrination of their children by the Democrats’ patrons, Education Inc. 

Since political considerations patently outweigh legal ones these days, there is doubtless no shortage of prosecutorial zeal to pursue Bannon. But doing so would be a mistake that Bannon and Trump loyalists would exploit for their own political purposes, to the DOJ’s embarrassment.

In principle, it is obviously legitimate for Congress to probe a riot on its own turf that was spurred by Trump’s unconstitutional effort to undermine Biden’s election — even if Trump’s antics did not amount to criminal incitement under federal law. It was thus proper for the House to convene a select investigative committee — even though Speaker Nancy Pelosi (D-Calif.), in characteristic partisan excess, undermined the committee’s effectiveness (and gave Trump a golden opportunity to brand it as illegitimate) by refusing to seat Trump-supporting Reps. Jim Banks (R-Ind.) and Jim Jordan (R-Ohio), whom House Minority Leader Kevin McCarthy (R-Calif.) tried to appoint.

Because the committee investigation is proper and Trump’s actions in connection with the riot are highly relevant, it was appropriate for the committee to issue subpoenas to Trump advisers. 

While several Trump administration officials reportedly have been subpoenaed, the House also was prudent to seek a contempt citation only against Bannon. That is because Trump is trying to block his former aides from testifying by asserting executive privilege, which is designed to shield from scrutiny a president’s communications with his advisers. Unlike the other Trump aides subpoenaed, Bannon was not on the White House staff at the time of the riot; he was a private media firebrand.

As a result, Bannon’s claim is the weakest. Legally, it makes sense for the House to hold him in contempt, which strengthens the House’s case for trying to enforce the Bannon subpoena in court, and thus increases the pressure on Bannon to stop resisting the committee’s inquiry.

Nevertheless, the DOJ should not get involved. While Bannon’s legal position is weak, it is not frivolous — and, therefore, is not criminal defiance. 

In the post-Watergate era case of Nixon v. Administrator (1977), the Supreme Court reasoned that even former presidents have executive privilege. The justices did not chart the full extent of confidentiality, and suggested that it can be overcome when shown to be outweighed by an official need for information. Yet, besides recognizing a privilege held by former presidents, the court derived this privilege from constitutional separation-of-powers principles. That means the privilege, however extensive it may be, may not be eradicated by legislation (such as the Presidential Records Act) or waived by the incumbent president. If a former president’s communications are at issue, the privilege belongs to that former president.

That said, the House should take Bannon to court. The committee’s need for the information is compelling, and Trump’s claim to need confidentiality for discussions with a non-government official — indeed, a media figure who frequently conveys Trump’s views to the public — is very unpersuasive.

Still, Bannon and Trump have a colorable legal claim. Even if it is weak, they have a right to litigate it. Ergo, the DOJ would have little if any chance of proving beyond a reasonable doubt that Bannon had criminal intent in defying the subpoena. He will argue — much like former Trump adviser John Bolton argued in the first Trump impeachment — that he’d be willing to testify if the courts reject Trump’s privilege claim.

Realistically, Trump and Bannon could tie the subpoena up in the courts for so long that the committee will never hear Bannon testify. Litigation could take many months. If Republicans take control of the House in 2022, they are likely to disband the J-6 Committee precisely because Pelosi politicized it. But if that happens, it will be because the Supreme Court dubiously recognized executive privilege claims by former presidents, and compounded that problem when, last term (in Trump v. Mazars), it foolishly encouraged the executive and legislative branches to litigate subpoena disputes in court.

That is neither the Justice Department’s doing, nor its problem. Its problem would be proving a criminal offense against Bannon. It won’t be able to do that. And by trying, it would only further confirm that politics, not law, is driving Garland’s decision-making.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.