Now for another episode of the show I like to call “Steve Bannon Vs. the Law.” Like previous episodes, Bannon may have a weak legal argument but still come out triumphant — as in season one, when he was pardoned by then-President Donald Trump, for allegedly defrauding Trump’s own supporters.
Bannon may have a weak legal argument but still come out triumphant.
In the lead-up to the Jan. 6 riot at the U.S. Capitol, Bannon, a former aide to Trump, has acknowledged telling Trump: “We are going to kill it in the crib. Kill the Biden presidency in the crib.” He was ordered to testify Thursday before the House Select Committee investigating the insurrection. Instead, like the titular character in Samuel Beckett’s play “Waiting for Godot,” Bannon failed to show.
Bannon’s decision to defy a valid congressional subpoena is why the Jan. 6 committee will meet on Tuesday, Oct. 19, to vote on referring Bannon for federal criminal contempt charges. After the Select Committee votes, the full House will vote on whether to recommend that the Department of Justice bring criminal contempt of Congress charges against him. Assuming the House votes in favor of the referral, it will be up to the DOJ to determine if it will bring charges.
Does this mean Bannon will be held legally responsible for thwarting the Select Committee’s investigation into the insurrection at the Capitol? Probably not.
Does it mean the Select Committee will get access to the information it needs to perform a thorough investigation into an unsuccessful coup? Unlikely.
As we’ve seen before, even when Trump and his allies have a losing legal argument, their strategy is to win by running out the clock on congressional Democrats.
Bannon claims he does not have to comply with the Select Committee’s subpoena because any information he has is covered by executive privilege. The problem for Bannon, or should we say the first problem, is that he left the White House in 2017, and, in this universe, 2021 falls after that.
Disregarding the fact that Bannon was not a White House staffer when the insurrection took place, Trump has directed Bannon and others to throw the cloak of executive privilege around themselves and refuse to comply with the Select Committee.
Here’s the next problem for Bannon: It is not even clear that Trump himself, the former occupant of the Oval Office, has a strong executive privilege claim. It is not at all clear the extent to which a former president can assert this privilege, and President Joe Biden’s White House has essentially said “no dice” to Trump’s claims.
Let’s take a moment to read the White House counsel’s letter on this topic: “Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them,” Dana A. Remus writes, “and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities.”
Remus also writes, “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
While a court has never definitively held that a private citizen who speaks to the president cannot use the protection of executive privilege, Bannon’s already weak claim is an apparent attempt to piggyback Trump’s weak claim.
But, alas, the inherent legal weakness of Bannon’s case may not matter. Members of the Select Committee have said they want to wrap up their work by the early spring. This is a political decision. Democrats don’t want an investigation so close to the 2022 midterms. But that political decision could allow Bannon and others to get away with their delay tactics. Bannon’s already weak claim is an apparent attempt to piggyback Trump’s weak claim. It takes time to haul a wholly defiant witness before Congress. Even if the full House votes in the coming weeks to refer Bannon’s case to the DOJ, we would then have to wait for the DOJ to make its own independent assessment. And then, even assuming the DOJ brings charges, that will kick off a protracted legal battle in federal court about the validity of the congressional subpoenas. It is difficult to envision a resolution on this before early spring. This situation is like the toddler who throws a tantrum because he doesn’t want to go to the doctor and cries and screams so long that the appointment is past. If it feels like déjà vu all over again, it is. During the first impeachment of Trump, certain witnesses stonewalled. Here’s looking at you, John Bolton (Trump’s former national security adviser) and Mick Mulvaney (then-acting chief of staff). House Democrats opted not to take their case to the courts, making the political decision that it was best not to let impeachment proceedings drag on. Democrats should not let history repeat itself. People tried to undermine this country’s sacred document, the Constitution. We deserve to find out the full story of who acted to subvert our democracy. Particularly if we don’t want Jan. 6 to be a mere “dress rehearsal.” Democrats can, and should, walk and chew gum at the same time. They should carry on the other business of the American people — working on issues related to the debt ceiling, the infrastructure bill, voting rights, health care and more — as they continue their investigation into a deep rot that poses an existential threat to our country. They should do that even if it takes time. There is no need to give Bannon another win and the American people another loss.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
