The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last night, the January 6 Select Committee released a resolution and accompanying report recommending that the House of Representatives hold Steve Bannon in contempt of Congress for his refusal to comply with a committee subpoena. The Committee is expected to vote on the resolution today, and a full House vote will follow. If the resolution is approved, Bannon could face prosecution.
Georgetown law professor Josh Chafetz, author of Congress's Constitution: Legislative Authority and the Separation of Powers, has a brief "NBC News Think" piece explaining why Bannon is (and should be) at risk of prosecution for his refusal to cooperate with Congress.
In one important sense, this fight is different from the conflicts over congressional subpoenas that occurred during the George W. Bush, Barack Obama and Trump administrations. In those cases, the chamber was fighting with the then-current administration, so the Department of Justice simply refused to prosecute — the seemingly mandatory statutory language notwithstanding. But here, the Democratic-controlled House and the Democratic-controlled administration are likely to be simpatico. So if the House does refer the matter to DOJ, prosecutors are likely to bring it before a grand jury. . . .
Bannon's spurning of the committee strikes at the heart of democratic governance in two distinct but related ways. The first has to do with the committee's substantive remit: It is investigating an attempt by Trump's supporters to overthrow the government by force. Naming insurgents and their instigators and facilitators is one way to try to prevent these individuals from holding positions of power in the future. The committee can also try to put forward proposals to make this sort of event less likely to occur, and less likely to succeed, in the future.
The subpoenas here are quite different than those for Donald Trump's financial records that went to the Supreme Court (and that I wrote about here). The Mazars subpoenas concerned private financial information, and Congress had taken insufficient care to substantiate its need for the documents (by, among other things, refusing to invoke the "I" word, impeachment). The argument that Congress needed these private financial documents for legitimate legislative purposes was overstated, and thus vulnerable. Here, however, Congress is focused on matters close to the heart of legislative responsibility, and directly related to potential abuses of authority and breaches of responsibility by public officials.
Like Chafetz, I find the claims of executive privilege asserted here to be quite weak. While former Presidents may raise executive privilege claims, such claims are weaker where (as here) they are not supported by the current administration and do not relate to national security, foreign affairs, or related matters where the need for executive branch secrecy is at its peak. Electioneering and post-election strategizing do not remotely rise to this level, nor does conspiring to delegitimize or delay the certification of election results.
It is true that, if Bannon and perhaps others persist, they may be able to undermine some of these essential functions of legislative oversight by keeping crucial information out of the committee's hands. The committee may be hindered in its goal of uncovering who precisely instigated the insurrection and how the insurgents were able to breach the Capitol. And even if the committee is ultimately able to press on without their testimony, Bannon and his colleagues may be able to slow the investigation down. (If Republicans were to retake control of the House in the 2022 midterm elections, they could shut down the investigation as soon as the new Congress begins in January 2023.)
This would be a loss not simply for Democrats, and not simply for those who rightly want to prevent another Jan. 6 from ever happening again, but for our constitutional order as a whole. The best way to prevent this sort of undermining of Congress' vital role is to dole out severe punishment to those who would engage in it.