Jan. 6 committee pursues criminal contempt referral for Bannon

By Melissa Macaya, Melissa Mahtani, Meg Wagner and Veronica Rocha, CNN

Updated 7:56 p.m. ET, October 14, 2021
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7:05 p.m. ET, October 14, 2021

CNN analyst: Holding Bannon in contempt "is a powerful statement by the committee"

Analysis from CNN's Elie Honig

The House Jan. 6 Select Committee is moving to hold Steve Bannon in contempt of Congress for refusing to comply with a subpoena. CNN senior legal analyst Elie Honig said, "these are difficult charges to make."

"It is a federal criminal misdemeanor to commit contempt of Congress. The maximum punishment is one year. Interestingly, there's actually one month minimum, meaning if you're convicted. You do have to go to prison for a month," Honig explained to CNN's Ana Cabrera.

Honig noted that the one play Bannon could use is pleading the fifth.

"He does have the right to take the fifth amendment against testifying if he may incriminate himself, and he certainly may. Look, Jan. 6 is under criminal investigation. If he takes the fifth, obviously it looks terrible. There's a real appearance issue, but at that point you can't force him to testify unless you immunize him, that's a whole other process, but it's almost impossible to bring a criminal charge if someone has a legitimate fifth amendment right. We'll see if Steve Bannon uses that counter move here," Honig said.

What the next steps could be: The CNN analyst outlined the process and what procedures Congress and the Department of Justice will have to follow in order to move forward with the charge.

"This is a powerful statement by the committee. They are not messing around. Not playing games," he said.

"So the first step in the procedure is the committee has to vote to hold Steve Bannon in contempt, then the whole House has to vote to hold Steve Bannon in contempt, at that point it shifts over to the Justice Department. The decision making at that point is no longer up to Congress, it is now up to Merrick Garland. That will be an extraordinarily important and difficult decision," Honig said.

Democratic Rep. Bennie Thompson, who chairs the committee, said the committee's next business meeting will be Oct. 19.

Honig continued to explain why Bannon is being held in contempt and not the other three witnesses who have been subpoenaed.

"One, he has outright defied this committee. Some of the other ones — we've heard Kash Patel, Mark Meadows — are negotiating, engaging with the committee. Bannon's position from the beginning has been, 'I'm out, I'm not giving you anything.' The other thing about Steve Bannon is, his legal claims and defenses are the weakest because he was not an executive branch employee at the time of these events, so any executive privilege claim he may raise here is completely ridiculous," Honig said.

He added, "[Bannon] was reportedly in Trump's ear from the time before of Jan. 6, leading up to Jan. 6. I mean, he's been one of Donald Trump's closest political advisers really from before the 2016 election, so, yeah — and there's plenty of evidence that Steve Bannon was centrally involved here. The committee has said they chose Bannon for a reason. So I think there's a reason they picked this fight."

4:42 p.m. ET, October 14, 2021

A look back at Bannon's relationship with Trump before the Jan. 6 riot

From CNN's Sara Murray, Katelyn Polantz and Ryan Nobles

Mandel Ngan/AFP/Getty Images
Mandel Ngan/AFP/Getty Images

Steve Bannon, who was Trump's former White House chief strategist, spoke with Trump in December, urging him to focus on January 6 — the date of the official certification on the Electoral College vote by Congress, according to authors Bob Woodward and Robert Costa in their book "Peril."

"'We're going to bury Biden on January 6th,'" Bannon is quoted as saying.

Woodward and Costa also reported that Trump called Bannon following his contentious Jan. 6 meeting with then-Vice President Mike Pence, in which the vice president said he does not have the authority to block certification of Joe Biden's win.

In its letter to Bannon, the Jan. 6 select committee cited communications he had with Trump in December "and potentially other occasions" in which Bannon reportedly urged Trump "to plan for and focus his efforts on January 6."

To former Trump officials Mark Meadows, the committee wrote that investigation has revealed "credible evidence of your involvement in events within the scope of the Select Committee's inquiry," citing his close proximity to Trump on the day of the attack. The committee also wants to learn more about Meadows' efforts to aid overturning the 2020 election results.

The committee announced today that it is moving forward to hold Bannon in criminal contempt for refusing to comply with a subpoena, as his game of chicken with the House panel now enters a new and critical phase.

"Mr. Bannon has declined to cooperate with the Select Committee and is instead hiding behind the former President's insufficient, blanket, and vague statements regarding privileges he has purported to invoke," Democratic Rep. Bennie Thompson, who chairs the committee, said in a statement on Thursday.

With the committee officially announcing their decision to move forward with criminal contempt for Bannon, the next step is for the committee to hold a business meeting, which Thompson said would be Oct. 19.

4:47 p.m. ET, October 14, 2021

Jan. 6 committee agrees to postpone appearances by Meadows, Patel and Scavino

From CNN's Ryan Nobles, Annie Grayer, Whitney Wild and Zachary Cohen

The House Select committee investigating the Jan. 6 attack on the Capitol has agreed to short postponements for Mark Meadows and Kash Patel to appear before the committee and provide testimony as both of them continue to “engage” with the investigation, a source familiar with the matter tells CNN.

The committee also has postponed a scheduled deposition for Dan Scavino because service of his subpoena was delayed, the source said. 

Patel, a former Department of Defense official from the Trump era, had been scheduled to sit for a deposition today. Meadows, Trump's former chief of staff, and Scavino, the former deputy chief of staff, had been scheduled to appear before the committee on Friday.

3:27 p.m. ET, October 14, 2021

Here's what criminal contempt is — and what it could mean for Trump ally Steve Bannon 

From CNN's Zachary Cohen, Katelyn Polantz, Ryan Nobles and Annie Grayer

Steve Helber/AP
Steve Helber/AP

The committee investigating the Jan. 6 Capitol Hill attack announced it is moving forward to hold Trump ally Steve Bannon in criminal contempt for refusing to comply with a subpoena, as his game of chicken with the House panel now enters a new and critical phase.

Criminal contempt is one of the three options the Jan. 6 congressional panel can pursue to enforce its subpoenas, along with civil and inherent contempt. To pursue criminal contempt charges, Congress would vote on criminal contempt, then make a referral to the executive branch — headed by the President — to try to get the person criminally prosecuted.

Bannon's lawyer on Wednesday wrote a letter to the panel saying that his client will not provide testimony or documents until the committee reaches an agreement with former President Donald Trump over executive privilege or a court weighs in on the matter. 

If Bannon is a no-show, the committee is expected to immediately begin seeking a referral for criminal contempt after the subpoena deadline passes — essentially making an example of Bannon's noncompliance as the House seeks more witnesses, sources familiar with the planning told CNN.

While it could take some time before the House sends such a referral to the Department of Justice, the committee could take initial steps within hours of the panel's stated deadline – which is Thursday — if Bannon refuses to cooperate, the sources added, underscoring the growing sense of urgency around the investigation itself.

What this step could mean for Bannon: As severe as a criminal contempt referral sounds, the House's choice to use the Justice Department may be more of a warning shot than a solution.

Holding Trump Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.

"They're in a box, in a way," Stanley Brand, a former House general counsel, said on Wednesday. "Any way they go is a legal donnybrook, potentially that will take time."

Congress almost never forces a recalcitrant witness into testifying through prosecution, according to several longtime Washington attorneys familiar with congressional proceedings.

An Environmental Protection Agency official in the Reagan administration was the last person indicted for criminal contempt of Congress. The DC US Attorney's Office of the Justice Department took eight days from receiving the House's contempt referral for Rita Lavelle in 1983 to having a grand jury indict her. Lavelle fought the charges to trial, and a jury found her not guilty.

At least one other criminal contempt proceeding predating Lavelle, during the anti-communist McCarthy-era investigations of the 1950s, was overturned by the Supreme Court on appeal. In more recent administrations, the Justice Department has declined to prosecute contempt referrals – though in those situations, Congress has made contempt referrals on members of the sitting president's administration.

"I'm watching people on TV bloviate about this. They're going to send [Bannon] to criminal contempt. OK. Fine. That just starts the case," Brand, who was the House general counsel during Lavelle's contempt proceedings, told CNN. "There's a trial. It's not automatic they're going to get convicted."

The criminal contempt approach also is structured to be more of a punishment than an attempt to compel a witness to speak.

Read the full story here.

CNN's Paul LeBlanc contributed reporting to this story.

1:37 p.m. ET, October 14, 2021

House Select committee moves to hold Bannon in criminal contempt

From CNN's Ryan Nobles

The House Select committee investigating Jan. 6 is moving to hold Steve Bannon in criminal contempt for refusing to comply with a subpoena, the committee chairman Rep. Bennie Thompson announced today.

Bannon had been scheduled to provide testimony today.   

“The Select Committee will not tolerate defiance of our subpoenas, so we must move forward with proceedings to refer Mr. Bannon for criminal contempt,” Thompson said in a statement. 

Bannon's lawyer on Wednesday wrote a letter to the panel, saying that his client will not provide testimony or documents until the committee reaches an agreement with former President Donald Trump over executive privilege or a court weighs in on the matter. 

3:29 p.m. ET, October 14, 2021

The White House formally rejected Trump's request to shield some documents from the Jan. 6 committee

From CNN's Kaitlan Collins

Scott Olson/Getty Images
Scott Olson/Getty Images

The White House formally rejected the request by former President Trump to assert executive privilege to shield from lawmakers a subset of documents that has been requested by the House committee investigating Jan. 6, and set an aggressive timeline for their release.

The latest letter came after the Biden administration informed the National Archives on Friday that it would not assert executive privilege over a tranche of documents related to Jan. 6 from the Trump White House. When the White House sent its first letter last week, the former President had not formally submitted his objections yet. The latest response from the White House counsel is more of a technicality in response to the request from Trump regarding the subset of documents, according to a person familiar, reaffirming the decision already made by President Joe Biden not to assert executive privilege.

The letter sent Friday, and released on Wednesday, from White House counsel Dana Remus to Archivist of the United States David Ferriero requests that the documents be released "30 days after your notification to the former President, absent any intervening court order."

After that decision was reported, Trump wrote to the National Archives, objecting to the release of certain documents to the committee on the grounds of executive privilege.

In the letter released Wednesday, Remus wrote: "President Biden has considered the former President's assertion, and I have engaged in additional consultations with the Office of Legal Counsel at the Department of Justice. For the same reasons described in [sic] earlier letter, the President maintains his conclusion that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents provided to the White House on September 8, 2021."

Read the full story here.

2:06 p.m. ET, October 14, 2021

Here's what could happen if Trump allies defy Jan. 6 committee subpoenas

From CNN's Paul LeBlanc

Members of the House select committee investigating the Jan. 6 attack on the US Capitol have floated the idea of seeking a referral for criminal contempt as the next step for anyone who defies a subpoena from the panel.

But what does that mean?

Criminal contempt is one of the three options the congressional panel can pursue to enforce its subpoenas, along with civil and inherent contempt. While lawmakers have said publicly that the committee is prepared to pursue criminal charges for noncompliant witnesses, members are now making it clear they are ready to move quickly if they don't get the level of cooperation they are looking for.

"I think we are completely of one mind that if people refuse to respond to questions, refuse to produce documents without justification, that we will hold them in criminal contempt and refer them to the Justice Department," Rep. Adam Schiff, a California Democrat and committee member, told CNN on Tuesday.

How it would work: To pursue criminal contempt charges, Congress would vote on criminal contempt, then make a referral to the executive branch — headed by the President — to try to get the person criminally prosecuted.

A jail sentence of a month or more is possible if a witness won't comply, under the law.

It's unclear how quickly this route would move, and how the Biden Justice Department would respond to a contempt referral from the Democrats in the House. The process would leave it up to Attorney General Merrick Garland to decide on involving the Justice Department in pursuing charges, putting the department in the middle of what many Republicans view as a partisan effort.

But Rep. Liz Cheney of Wyoming, one of two Republicans on the panel, told CNN that "the committee is completely in solidarity" on the decision to move quickly on pursuing criminal contempt charges for those who evade subpoena deadlines.

"People will have the opportunity to cooperate. They will have the opportunity to come in and work with us as they should," Cheney said. "If they fail to do so, then we'll enforce our subpoenas."

Read about the other options the congressional panel could pursue here.

1:42 p.m. ET, October 14, 2021

Kash Patel, a target of Jan. 6 committee probe, not expected to appear today for scheduled deposition

From CNN's Paula Reid and Ryan Nobles

Kash Patel, a former Department of Defense official from the Trump era, is not expected to appear today for his scheduled deposition with the House select committee investigating the Jan. 6 insurrection, multiple sources familiar with today’s plans tell CNN.

While Patel will not meet today’s deadline, these sources say Patel is still engaging with the committee.