Bannon’s subpoena snub sets up big decision for Biden DOJ

Former Trump White House strategist Stephen Bannon’s choice to buck a subpoena from the House committee investigating the Jan. 6 attack on the Capitol could tee up a big decision for a Justice Department determined to strike an independent tone.  

The House committee has said it may refer Bannon for criminal prosecution by the Department of Justice (DOJ) if he doesn’t appear for a deposition slated for Thursday.

Such a move would place Attorney General Merrick Garland in the center of a debate over whether to go after a former right-hand man of Donald Trump after vowing to restore the reputation of a department that was deeply politicized under the prior administration.

“That’s going to be something that will be considered at the highest levels at DOJ, and what they’re going to consider with any referral like that is how strong of a case is it, and even if it’s readily provable — how important is it that we do this?” said Mark Osler, a former federal prosecutor who now teaches law at the University of St. Thomas.

The law allows for Congress to refer a noncompliant witness to the DOJ for criminal prosecution, which could result in jail time, a fine or both. 

The Trump administration has a long history of defying congressional investigators, and Bannon, through his lawyer, said he would disregard the subpoena until a yet-to-be-filed legal case from Trump resolved whether the former president can rely on executive privilege to bar his ex-employees from testifying before lawmakers.

“We will comply with the direction of the courts,” Robert Costello, Bannon’s attorney, wrote in the letter.

Legal experts have expressed doubts Trump will make much headway in an executive privilege suit, as the protection largely applies to sitting presidents. Bannon is also being sought for questioning surrounding his role in planning rallies on Jan. 6 — activity that came years after his brief stint as a White House adviser. 

Barbara McQuade, who served as a U.S. attorney during the Obama administration, said the referral provides the DOJ the opportunity to be an important accountability check on those in Trump’s orbit. 

“There are a number of things prosecutors have to think about. One is, what is the deterrent effect of bringing a case here in light of the history of the Trump administration, allies and others thumbing their noses at congressional subpoenas and stalling? There’s a compelling case here for bringing criminal charges,” she said. 

Both the committee and the DOJ declined to comment.

The congressional select committee has an advantage given that the executive branch is now controlled by President Biden. 

After Democrats recaptured the House majority in the 2018 midterm elections, they launched myriad investigations into Trump and his administration, but they were hamstrung by the Trump White House. The House Judiciary Committee didn’t secure testimony from ex-White House counsel Don McGahn until June of this year. 

And while the Democrat-controlled House in 2019 also voted to hold then-Attorney General William Barr and then-Commerce Secretary Wilbur Ross in criminal contempt over their refusal to comply with subpoenas, the citations were purely symbolic given that the Justice Department did not act on them. 

The White House has signaled that it will not tip the scales one way or another, with White House press secretary Jen Psaki telling reporters Friday that the DOJ would make any decision on criminal prosecutions. 

“I think the White House is going to go to extreme lengths to not have any influence on this,” said Steve Cash, a lawyer at Day Pitney and former chief counsel to Sen. Dianne Feinstein (D-Calif.). 

But it’s clear House Democrats are hopeful the change in administration will aid the committee’s efforts.

“We may have additional tools now that we didn’t before, including a Justice Department that may be willing to pursue criminal contempt when people deliberately flout compulsory process,” Rep. Adam Schiff (D-Calif.), one of the nine members on the committee, said last month.

Whether the Justice Department will back them up remains to be seen.

The decision to act on criminal referrals would likely be made by the U.S. attorney’s office in Washington, D.C., and lawyers at the highest levels of the main Justice Department. Lawyers would need to determine if there’s probable cause, a likely determination given that Bannon’s and Trump’s executive privilege claims have little merit, and whether the case can be proved in court. The department could take into consideration the gravity of the situation, in that officials would be charging an aide to a former president of the opposite party.

In prior cases under the Biden administration, the Justice Department has taken stances to side with protecting executive power.

“Garland has demonstrated that he is one to show quite a bit of restraint, quite a bit of respect toward separation of powers. He has stated part of his mission is to restore public confidence and independence of the Justice Department, so I don’t know that he’s going to be terribly aggressive here,” McQuade said.

McQuade said the committee has other options. It could seek the assistance of the House sergeant-at-arms to arrest Bannon — an unlikely move — or file its own civil suit asking a judge to hold Bannon in contempt, jailing him until he agrees to speak with lawmakers. 

“It’s the less aggressive approach that might be effective,” she said. “Prosecutors in general and Garland in particular tend to look for the path of least resistance. I don’t need to use the nuclear weapon if the conventional weapon will work.”

Bradley Moss, a national security law expert, said either choice could mean blowback for the department.

“There are competing factors here, and the reality of the matter is how much the committee — and ultimately DOJ — really want to assert their leverage against Mr. Bannon. For DOJ, they have an obligation to hold individuals accountable who engage in contempt of Congress. Doing so here has obvious political implications and sensitivities, and the Department no doubt will want to see some additional effort made to negotiate with Mr. Bannon before they pull the proverbial trigger on an indictment,” he said. 

“A civil lawsuit by the committee would be far less controversial, and would spare DOJ the need to wade into this fight. However, Trump allies have made clear they don’t care about civil lawsuits and will happily drag that out until after 2022. It has no real leverage against a political operative like Mr. Bannon: he’d relish the fundraising and clickbait potential of it,” he added.

Osler warned that seeing Bannon jailed due to committee action would be “divisive and play into the sense of persecution you find among conservatives.”

Trump hasn’t yet filed his executive privilege suit, but if he does, it’s possible it could complicate a civil suit from the House — a move that could appeal to the former president, who has been accused by many of using lawsuits as a delay tactic.

“I think their timeline is very firmly pegged to the midterm elections. If they can slow walk this until they get a new Congress, they won’t have to worry about the next Congress pursuing it,” Osler said.