Editor’s Note: Norman Eisen is the executive chair of the States United Democracy Center. He served as former President Barack Obama’s ethics czar and ambassador to the Czech Republic, and was special impeachment counsel to the House Judiciary Committee in 2019-2020. He is a senior fellow at the Brookings Institution. Dennis Aftergut is a former federal prosecutor and co-chair of the Coalition to Preserve, Protect & Defend. The views in this commentary belong to the author. View more opinion at CNN.
The House select committee investigating the January 6 riot appears to be moving swiftly to hold former President Donald Trump’s cronies to account. First up is former White House chief strategist Steve Bannon, who could face charges of criminal contempt for refusing to comply with the committee’s subpoena.
Despite some Beltway carping, the committee’s move to pursue criminal charges is essential for its search for the truth of what happened on Jan. 6.
Bannon was among the very first to be subpoenaed by the committee, with good reason. While he fell out with Trump and left the White House in August 2017, the two later reconciled.
According to Bob Woodward and Robert Costa’s book “Peril,” Bannon convinced the former president, who was at his Mar-a-Lago resort in late December, to return to Washington, DC for Jan. 6.
According to the book, Bannon acknowledged the date “was the moment for a reckoning” and told Trump, “We are going to kill it in the crib. Kill the Biden presidency in the crib.”
On January 5, Bannon said the quiet part out loud on his podcast: “All hell is going to break loose tomorrow.” (He later claimed he was alluding to Vice President Mike Pence rejecting electoral slates).
Thursday, Bannon failed to show up for a scheduled deposition before the House committee. His lawyer said his client would not provide documents or testify until the committee reached an agreement with Trump over executive privilege or a court weighed in on the matter. The Jan. 6 committee has seen and raised him, announcing it will adopt a report to hold him in criminal contempt. The report will then move to the House for a vote. If it is approved (as it almost surely will, unless Bannon relents), it will go to US Attorney General Merrick Garland and the Justice Department to decide whether to prosecute.
Some legal experts have questioned the move to pursue criminal charges, citing the possibility prosecution could take years and ultimately lead to Bannon’s acquittal.
They are wrong. If the committee turns the other cheek, it would preemptively surrender its own investigative powers. Letting Bannon go would invite others to act with the same impunity. The committee has issued a total of 19 subpoenas and more could be on the way If the committee gives Bannon a pass, will the others comply? One might as well turn the committee lights off. Conversely, pursuing charges against Bannon sends a message to other witnesses; they could be in serious trouble if they refuse to cooperate.
It is not enough for the committee that there is already damaging information against Bannon publicly available. There is no substitute for the compulsion of an oath or the power of cross-examination to elicit the whole truth. Such evidence could be used by others, like prosecutors in Georgia, who are relying on the committee’s investigation as they determine if Trump broke laws trying to overturn the state’s election results.
As a practitioner of Congressional oversight and a former prosecutor, we believe prosecution is likely. For starters, Bannon’s legal claim is unfounded. His lawyer’s letter cites the same legal fight that ultimately shot down the House’s attempt to get former White House counsel Don McGahn to comply with a subpoena, which asserts “the President” can make executive privilege determinations. But Trump is no longer the president. In the United States, we still only have one of those at a time, and President Joe Biden has not asserted privilege here. On the contrary, the Biden administration has cooperated with Congress, waiving privilege so far when it comes to witnesses and documents alike.
In February, Trump’s lawyers claimed he could not be impeached as a former president. Now, nine months after his departure, Trump is indicating he will assert the prerogatives of the White House by trying to invoke executive privilege to block the House committee from getting information from certain witnesses.
Even if Trump could claim the privilege, it is hard to understand how it could apply to Bannon. The House committee is investigating events on and around January 6, 2021, and Trump fired Bannon in 2017.
Even if Bannon had been a current executive employee, allegedly helping incite an insurrection, it would not be considered an official function of his job. When Rep. Mo Brooks asked the Justice Department to defend him after Rep. Eric Swalwell sued him for his alleged role in the insurrection, the DOJ rejected the request, saying he was not entitled to immunity as a federal employee because his actions did not fall under the scope of his job.
Bannon’s legal defense is also weaker, because unlike others, he has not cooperated or negotiated with the committee. Courts do not like that.
We believe Garland will very likely prosecute; this is a man who knows a strong case when he sees one.
As a former judge, Garland knows the administration of justice depends on complying with subpoenas, and enforcing the law when they are disregarded. And as a lawyer who has lived and breathed the Constitution for more than four decades, he is committed and sworn to uphold its authority. Article I grants Congress the implied power of oversight, which requires investigation. The investigation requires the ability to compel testimony under oath.
What of the supposed delay critics say this move will occasion? The last time someone was indicted for criminal contempt of Congress, the House committee adopted a resolution in April 1983. The resolution was then agreed to in the House in May, and an indictment followed eight days later, with the jury delivering a verdict in July.
Even if the Bannon case takes longer, no matter. The committee need not wait for court rulings to continue the investigation and issue a detailed all-but-final report while it awaits an outcome in the Bannon prosecution.
Bannon seems to be relishing the fight. In the fever-swamped parallel universe in which he dwells, it is a badge of honor. But the drama serves more noble purposes as well, reminding the press and the public of Trump’s illegitimate assault on the 2020 election, which allegedly led to the insurrection. Bannon’s actions also keep an important question front and center: What does he have to hide?
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Ours is a government of laws, not men. It was routine during the Trump years for the president and his minions to make a mockery of both the law and of Congress’ constitutional authority. Let’s not forget the House voted to hold then-Attorney General Bill Barr in criminal contempt for refusing to comply with subpoenas. (The Department of Justice, of course, did not prosecute him.)
For the American experiment to endure, it is vital to restore full faith and trust in the law’s compulsory power. Without it, there is no accountability for those who rule, and the prospect of our enduring liberty is in peril. The January 6 committee’s resolute enforcement of its authority is about more than Steve Bannon. It reinforces the foundation of our constitutional republic.