By Jan Wolfe
A U.S. congressional committee investigating the deadly Jan. 6 storming of the Capitol is pursuing contempt of Congress charges against Steve Bannon, a longtime adviser to former President Donald Trump who is defying demands for information.
Trump claims the documents and testimony the committee is seeking is protected by executive privilege and must be kept confidential, and Bannon is rebuffing investigators until they reach a deal with Trump or a court weighs in.
Three former Trump administration officials — Mark Meadows, Dan Scavino and Kash Patel — have received similar subpoenas, but the extent of their cooperation was unclear. The House of Representatives Select Committee said last week it was “engaging” with Meadows and Patel.
Here’s an explanation of how congressional investigators could pressure the Trump allies to comply:
IS IT A CRIME TO DEFY A CONGRESSIONAL SUBPOENA?
Yes, an 1857 law says failure to comply with a congressional subpoena for testimony or documents is a misdemeanor, punishable by one to 12 months imprisonment.
This law, known as the “contempt of Congress” statute, outlines a process for the House or Senate to refer a non-compliant witness for criminal prosecution. Ultimately, the U.S. Justice Department decides whether to bring criminal charges.
Under this process, the Select Committee must report on its efforts to force compliance by Bannon. Once the Select Committee adopts a contempt report, the question of whether to make a referral is put to the House for a vote.
A big question in Washington is how President Joe Biden’s Justice Department would respond to a contempt referral from the Democrats in the House. The Justice agency declined to prosecute an Internal Revenue Service official in 2014 under Democratic former President Barack Obama and maintained that stance under Trump.
DOES CONGRESS HAVE OTHER OPTIONS FOR ENFORCING SUBPOENAS?
The Supreme Court said in 1821 that Congress has “inherent authority” to arrest and detain recalcitrant witnesses on its own, without the Justice Department’s help.
But it has been almost a century since Congress exercised this arrest-and-detain authority, and the practice is unlikely to make a comeback, legal experts said.
During Trump’s impeachment trials, senior Democratic lawmakers including Representative Adam Schiff discussed reviving this power, known as inherent contempt.
Instead of jailing recalcitrant witnesses, the House could issue daily fines, Schiff said in 2019. Democrats never followed through on that proposal.
WHAT ABOUT CIVIL LITIGATION?
The Select Committee could sue Bannon or other witnesses who refuse to comply with subpoenas, seeking a court order that they are legally obligated to hand over information.
The House tried this approach during Trump’s presidency, but the court cases unfolded slowly. A lawsuit over whether the IRS must hand over Trump’s tax returns to a House committee has still not produced a single ruling on the merits.
Trump, in recent public statements, has also raised the possibility of suing to block the Select Committee subpoenas to his allies. Such a lawsuit would provide another avenue for the judicial branch to rule on whether Bannon, Scavino, Patel and Meadows must comply with the committee’s demands.