Why Isn’t Steve Bannon in Jail? Ask the Democrats

Bannon’s refusal to appear before the January 6 Select Committee is a clear case of contempt of Congress, but Democrats aren’t bringing their full power against him

By Elie Mystal
Oct. 15, 2021

Indicted money launderer and noted coup enthusiast Steve Bannon has refused to sit for a deposition in front of the January 6 Select Committee. He has also once again decided to defy congressional subpoenas for documents related to January 6. Bannon claims that the documents and testimony requested by the committee are subject to executive privilege. He says he will not comply without the blessing of former president Donald Trump.

Legally speaking, the word “former” is kind of important. Executive privilege attaches to the Office of the President of the United States, and we have only one of those at a time. The current president, Joseph R. Biden, has not asserted executive privilege over the information the committee requested. This fact alone renders Bannon’s position wrong and obviously so, but it only scratches the surface of the legal and logical ridiculousness of Bannon’s arguments. Bannon was not working for the White House at the time, which means executive privilege shouldn’t apply to him. And the information he’s being asked to turn over relates to a coup against the government, which can’t possibly be privileged in the first place. Summing it all up: Bannon is claiming “executive privilege” on behalf of a guy who is not the executive, whom he wasn’t working for, and who was trying to overthrow the government of the actual executive.

If the Trump era has taught us one thing, however, it’s that being absolutely wrong about the law in every way is OK if nobody has the will to hold you accountable. Bannon knows that the Democrats simply do not have the strength to punish his lawlessness.

Bannon, very likely, has important information about the planning of the January 6 rally that preceded the attack on the Capitol. He was a vocal proponent of the event, and issued now-ominous warnings like “all hell will break loose” and “the game is going to start on Capitol Hill.” What Bannon knew and who he told about it is relevant to the Select Committee, even beyond what conversations he may have had with his buddy Trump.

Bannon missed the deadline to submit documents last week, but Democrats did not act because the deadline to sit for a deposition was this week. I’m not sure why the Select Committee thought an extra week would change Bannon’s mind, but it didn’t. Now that he’s missed the deposition deadline as well as the document deadline, Committee Chairman Benny Thompson says that they will start the process of referring Bannon for criminal contempt proceedings… next week. There’s a three-day “notice” period before a Congress member can call a vote on a criminal contempt referral, and instead of starting that process last week when Bannon missed a deadline to turn over documents, the Select Committee waited until this week when he missed the documents and deposition deadlines. Cool system we’ve got here, bro.

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Referring Bannon to a criminal contempt proceeding could result in jail time or financial consequences for Bannon, but it is a much longer process than Democrats (and Democratic apologists) would have you believe. First, the Select Committee has to vote to refer Bannon for a criminal contempt proceeding; then that referral has to be taken up by the full House of Representatives. I have no idea when that will happen, or how many Republican stunts we will have to endure along the way, but for the sake of argument, let’s say Congress does its part by the end of next week

Remember, this is all just a “referral” for a contempt proceeding, not an actual vote on whether Bannon was in contempt. Assuming that the full House eventually makes that criminal referral, the whole thing ends up on Merrick Garland’s desk at the Department of Justice. It will be Garland—a man not renowned for his speed—not Congress, in charge of the actual contempt proceeding against Bannon.

A criminal contempt proceeding is essentially a prosecution for noncompliance with the law. It doesn’t really exist to make witnesses testify but to punish people who do not. It’s a criminal proceeding, just like any other, which means that the defendant is entitled to a fair jury trial and an appeals process. The whole thing could take years, even if Bannon is found guilty of criminal contempt. Which itself is not a sure thing: The last official who was indicted for criminal contempt was Rita Lavelle, an administrator in Ronald Reagan’s EPA, in 1983, and she was acquitted.

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To put it bluntly: If this is all the Democrats have got, Bannon is going to get away with it, again. He is openly defying a congressional subpoena based on a legal argument that is insulting to basic logic, and he is going to delay consequences for his actions until long after the midterms, if he faces them at all. “Criminal contempt” sounds serious but means functionally nothing because time is on the side of white domestic terrorists.

If Democrats wanted to get serious with Bannon, they wouldn’t be talking about criminal contempt; they’d be talking about “inherent contempt.”

If a regular citizen defies a court order to produce documents or testify, they go to jail. They do not pass “Go”; they do not collect $200 from the Mercer family; they just go to jail and sit there until they feel like following the law. In our system, you can challenge subpoenas, but you can’t ignore them. That is because the court, any court, has inherent power to jail people to enforce its own subpoenas.

Congress has that same inherent power. Congress can straight-up put people in jail for noncompliance with subpoenas.

That power hasn’t been used since 1927, in a case involving the brother of former attorney general Harry Daugherty, but in that case the brother defied two Senate subpoenas and he was arrested. The Supreme Court upheld the arrest. Justice Willis Van Devanter (I’m not making up that name) wrote: “Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.”

Of course, a modern use of inherent contempt would be challenged by Bannon, but the cool thing about using it is that Bannon would be sitting his fraudulent ass in jail while working on his appeals. And it would send a message to other people who are thinking of defying the Select Committee that they too would go to jail while trying to lawyer their way out of compliance. And though the Supreme Court might try to spring its conservative cronies in an unsigned, shadow docket opinion, there’s no reason Congress would have to acquiesce to such a partisan hack job violating the court’s own settled precedent. I mean, what is Sam Alito gonna do, slip Bannon a skeleton key in a pack of cigarettes?

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Inherent contempt, not criminal contempt, is the way to get Bannon in jail now for his flagrant refusal to comply with a duly authorized congressional subpoena, but Democrats do not seem to want to use this power. Adam Schiff threw around the words “inherent contempt” back when Trump was stonewalling congressional investigations into foreign interference, but never used it. Jamie Raskin has included inherent contempt in the list of possible Select Committee responses to uncooperative witnesses, but now that we have a real-life uncooperative witness, we’re back to criminal contempt.

Inherent contempt would be a bold move, but an appropriate one to deal with Bannon’s brazen refusal to comply with a subpoena about, let’s not forget, a plot to overthrow the United States government. But Democrats once again lack the will to use maximal power against Trump cronies who threaten the government.

Which is why Trump cronies threaten the government. They know there will be no consequences for their actions. I don’t think Bannon is refusing to testify because he’s “afraid” of Donald Trump. I think he’s refusing to testify because he’s not afraid of elected Democrats.

* Elie Mystal is The Nation’s justice correspondent—covering the courts, the criminal justice system, and politics—and the force behind the magazine’s monthly column “Objection!” He is also an Alfred Knobler Fellow at the Type Media Center. He can be followed @ElieNYC.

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