Holding Steve Bannon in Contempt

Congress prepares to assert its investigative authority.

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.

Writes Chafetz:

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.

Comments

[Archibald Tuttle]

Bannon can prolong the headlines by resisting, giving in only at the last minute.

When he appears, he can borrow from the playbook of Lois Lerner.

Legislative hearings in the USA are pure kabuki

[KevinP]

Under the Separation of Powers, does Congress have the power to investigate private citizens?

[Brett Bellmore]

It’s pretty well established that they do.

[MP]

I’ve never studied it so I have no understanding of the legal basis. But intuitively, it just seems wrong that a private citizen can incur penalties for thumbing their nose at Congress.

[LawTalkingGuy]

It’s because Congress needs to gather facts to fulfill its legislative duties. If people continuously decline to turn over evidence or testimony in areas they might want to legislate in, then their work is stymied. Just like courts need to compel private people to provide evidence to resolve cases, Congress occasionally needs it to legislate. And I can’t think of an area where that interest is so high as: preventing the legislature itself from being overrun again. It is kind of ridiculous to suggest the legislature can’t investigate private citizens who might have information on disrupting the work of the legislature.

[Moderation4ever]

Well put.

[Lee Moore]

If people continuously decline to turn over evidence or testimony in areas they might want to legislate in, then their work is stymied.

No it isn’t, they just need to proceed on the basis of such evidence as is readily and voluntarily available to them. After all it’s not as if there’s a shortage of people in Washington willing to offer advice on what Congress should be passing laws on.

Is the case really being advanced that Congress is stymied from making laws to try to prevent and punish espionage if foreign intelligence organisations decline to come and given evidence about their methods ? Poppycock.

As for Bannon – what evidence could he possibly give that might assist Congress in its legislative ponderings ? Even if he flatly denied all wicked Trumpist schemes, that would not prevent the Congress from imagining such schemes and legislating to stymie them.

In re 6 Jan, the whole idea that the Committee needs to interview witnesses for some legislative purpose is entirely pretextual.

And generally, the idea that Congress needs the power to compel witnesses even about any genuinely proposed legislation is fanciful.

[Sarcastr0]

It’s from the Founding, and inherited from the legislative power of the British Parliament.

In the late 1790s, declaring contempt of Congress was considered an “implied power” of the legislature, in the same way that the British Parliament could make findings of contempt of Parliament
https://en.wikipedia.org/wiki/Contempt_of_Congress

[Lee Moore]

It is strange that no one (but me) finds it strange that a government of enumerated powers (radically different from the British idea of the Sovereignty of Parliament) can nevertheless discover “implied” powers floating about the place.

But my point was not to illuminate the ancient-ness of the error in supposing that Congress has unenumerated powers to compel testimony, but merely to emphasise that the alleged “need” for compulsive powers in allegedly pursuing legislative ends is nonsense. Not only is the “need” unneeded on its face, but there is a long train of history demonstrating the fact.

1. The House did not even attempt pre-legislative investigation until 1827*. (I confess I do not know if it claimed compulsive powers.)

2. The Senate eschewed such things until 1859*. (Ditto.)

3. In the Legislative Reorganisation Act of 1946, the House Un-American Activities Committee was the only standing committee of the House to be given compulsive powers*.

So the notion that Congress’s legislative function is “stymied” if it cannot compel testimony is, as I said, poppycock.

* https://www.law.cornell.edu/supremecourt/text/354/178

[Brett Bellmore]

Well, no, I find it strange, too, and wouldn’t sign on to it. But I do observe that it’s not like they came up with the idea yesterday, and the courts HAVE signed off on it.

[Sarcastr0]

The Legislative Power is the enumerated power.
This is not strange. Similar generalities show up in Articles II and III as well.

As to your functional argument, I think Congressional investigation is required in the modern era to make good laws as legislation sets up intricate programs, as is the norm in the modern era.

This is especially true when Congress is performing it’s oversight function.

[MP]

Interesting that (at least according to the Wiki) the foundational Subpoena Power case relates to the House Committee on Un-American Activities.

[Stephen Lathrop]

Congress needs power to compel testimony to accomplish its legislative purpose, the success of which depends on political support. If Congress supposes controversial legislation may be needed, but is divided and uncertain, testimony may serve the double purpose to reduce the division, and to increase political support among the public. Or testimony may warn Congress away from pursuing bad policy, or policy which the public will not support.

[Lee Moore]

If Congress supposes controversial legislation may be needed, but is divided and uncertain, testimony may serve the double purpose to reduce the division, and to increase political support among the public.

I think you just said the quiet part out loud.

[Stephen Lathrop]

Lee, if you are referring to, “political support,” as the, “quiet part,” then you are the one doing it wrong. The founders intended politics as this nation’s means of self-governance. Building political support for intended policies is the most honorable and constructive way to implement them. People who habitually denigrate, “political,” or use the term as an epithet, are cynical at best.

[Greg J]

“It’s because Congress needs to gather facts to fulfill its legislative duties”

This “investigation” is not abotu a “Legislative duty.”

“How do we better secure the building” might be a legislative duty. But there the answer is “tell the police not to invite protesters in”

“And I can’t think of an area where that interest is so high as: preventing the legislature itself from being overrun again”

That’s not a “legislative duty”. And the answer is “tell the Speaker of the House not to refuse adequate police protection, and tell the cops to arrest anyoen who tries to break in to teh Capitol building.

Of course, that would involve arresting, prosecuting, convicting, and throwing in to jail all the Democrat “activists” who do just that. See: Kavanaugh hearings.

I believe those invasions are still within the Statue of Limits.

This is a bullshit wankfest of a “show trial”, nothing more. And since you all are capable of typing, none of you are stupid enough not to know that.

[Rev. Arthur L. Kirkland]

” it just seems wrong that a private citizen can incur penalties for thumbing their nose at Congress ”

Disaffected, contrarian, uninformed, anti-government cranks agree!

Prof. Adler is trying to avoid having this blog devolve into purified “Gene, Josh, and the Sons of the Confederacy.” I expect him to fail (or, perhaps more likely, emulate Prof. Kerr and merely distance himself from this trainwreck) but I wish him well.

(That concluding saxophone note runs through more bars than a freshman with a new fake ID. Thank you, for everything, Big Man.)

[John F. Carr]

I remember reading about Congress being abusive during the 1950s trying to root out communists. Eventually people thought they went to far. Through the 1970s people were willing to complain about the conduct of people they voted for, with Nixon losing half of Republicans being a late example. Now Pelosi could shoot a conservative in Lafayette Square and get away with it.

[Brett Bellmore]

Actually, I suspect that would raise her support in certain Democratic circles.

[Fuzzyone]

If he is an ordinary private citizen how can he claim executive privilege precludes his testimony?

[KevinP]

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.

Prof. Adler, any word on the severe punishment that occurred to NSA Director Michael Hayden after he lied to Congress?

[M L]

Curiously no word from Professor Adler, I think.

Maybe he has a word on James Clapper lying to Congress? Or John Brennan? Or Jim Comey?

[Bob from Ohio]

“severe punishment”

Everyone loves the “carceral state” when its somebody you hate getting put in prison.

[Dilan Esper]

I hate to admit this, but you do have a point. After 1/6, I have watched a lot of liberals advocated full throated for stuff like denying everyone bail. Since when is it a liberal position that people should be automatically or nearly automatically imprisoned pre-trial before a determination of guilt is made? Or arguing that sentences of a few months in federal prison are “no big deal” and “a slap on the wrist”, when these are exactly the sort of sentences we generally (and I think correctly) claim to be sufficient to punish many moderate offenses.

I think Congress and the DOJ have the power to test these claims of executive privilege should they desire to, and the courts will adjudicate them. And that’s fine. But there’s no reason to suddenly be lustful for frog-marching people off to prison.

[LawTalkingGuy]

Same with Ashli Babbit. Any use of lethal police force should be independently examined. Really dislike the reflexive defense of the officer by supposed liberals. I mean you don’t have to go full on Paul Gosar level conspiracy theorist to accept the idea that someone independent should look at this shooting just like they should look at literally every other shooting.

[Dilan Esper]

Babbit seems to have gotten close enough to where the politicians were that my reaction to seeing it on video was that the shooting was probably justified.

But I nonetheless agree, it’s an officer involved shooting on the grounds of the Capitol and many people think it was unjust, so yeah, an independent investigation that lets the chips fall where they may is certainly called for.

[LawTalkingGuy]

Also a political winner for democrats, to me. They get to be consistent on police reform and highlight the utter hypocrisy of people who didn’t meet a police shooting they didn’t like until Babbitt’s.

[Commenter_XY]

LTG, without commenting on whether I think Lt Michael Boyd should face an independent investigation or not…some timeless advice (from my mother, may she rest in peace) comes to mind.

Be careful what you wish for. You might actually get it.

[M L]

No, you’ve got it wrong. When you are an authoritarian movement, not having an investigation is the political winner.

“See? We can have our shock troops protest and riot violently all year long, killing dozens of people, assaulting thousands of innocent bystanders, causing billions in property damage, etc. And we’ll premise this all on . . . police violence, let’s say, when a violent criminal drug addict porn actor (who we’ll erect statues and monuments to, as we tear down Jefferson and the like) overdoses and the arresting officer imprisoned. We’ll praise these mostly peaceful protests all day long. Then, when you try and do an unarmed peaceful protest with a few scuffles, the only person who gets killed is an unarmed protestor by the poiltician’s police, and we’ll pretend that event was much worse and use it as an excuse to crush civil liberties of political opponents, and the killing doesn’t even need to be investigated. See? Let that be a lesson to you.”

[Sarcastr0]

They had an investigation, though. It should have been public, but it’s not like they just ignored the shooting like often happens with local cops.

[Commenter_XY]

Personally, I think Boyd is on pretty firm ground. I read an in-depth analysis about this in Legal Insurrection from a lawyer named Andrew Branca. Going by the letter of the law Branca explicated, Boyd is in the clear (to me).

I don’t like that. But that is the current law. Hopefully we all have learned something here.

[M L]

The post at Legal Insurrection is pretty unconvincing in its key parts.

Here’s a different take:

“While the situation facing Lt. Byrd was chaotic and frightening, video of the incident shows that Babbitt was merely breaking and entering. She was not presenting an imminent threat to anyone at the moment she was shot. Moreover, in his interview, Byrd admitted that, “I could not fully see her hands or what was in the backpack or what the intentions are.”

That gives the lie to Byrd’s claim that he was convinced Babbitt posed a lethal threat. Babbitt was the only person who died as a result of the violence on Jan. 6—two other demonstrators died of natural causes and a policeman (who was erroneously reported to have been fatally beaten during the riot) died of natural causes the next day. Though other Capitol police had actually been attacked by the mob, none fired their weapons even in self-defense.

We may understand Byrd’s fears and not know exactly what was in his mind at the moment he fired. But if police had applied to the 2020 Black Lives Matter riots the same standard that was applied to Byrd’s shooting of Babbitt, then hundreds—if not thousands—of rioters around the country, including those who broke into government buildings, could have been legally gunned down, even if they were unarmed. Does anyone think that such shootings would have been justified by those who now laud Byrd, or that the cops involved would not have been dismissed and put on trial?

https://www.newsweek.com/ashli-babbitt-standard-opinion-1624198

[Sarcastr0]

As has been gone over many times, that plays with the scope. She was not alone, and if she was the impetus of a *situation* that poised a lethal threat, justification still applies.

[Jason Cavanaugh]

What’s even more unconvincing is your attempt to defend Babbitt.

She chose to cross a red line – a defensive barricade which was the last defensible position before encountering members of Congress.

She chose poorly, and died as a result. Boo hoo. Had she bothered to adhere to the commands given – or indeed never set foot illegally inside of the Capitol, she’d still be alive today.

[Brett Bellmore]

Yeah. I think the cop probably over-reacted, but if Babbitt hadn’t gone in while being ordered to refrain, she’d likely still be alive today. There was plenty of stupid to go around that day.

[Stephen Lathrop]

Anyone who supposes Babbitt was wrongly shot should take a moment to consider the only analogous situation—which is not some protest in Minnesota. The applicable analogy is an initially successful attempt to attack the President in the White House, where by some miracle a mob of attackers had got inside the building without being gunned down en masse outside.

Who for a minute supposes that if the Capitol had been defended by the Secret Service on June 6, that anyone would have gained access to the building? Every person who got past the exterior line of defense would have been either incapacitated and arrested instantly, or shot dead as they approached the building. Absent complete deterrence consequent to the first shooting or two (which would almost certainly have occurred), there would have been scores of fatalities. And if the analogy with White House security were maintained (as it ought to be), no one would have been the least bit surprised, and very few would venture to complain afterwards.

Who does not expect the President to be protected by a deadly response at the slightest sign of an otherwise uncontrollable forceful approach? On what basis should anyone excuse a lesser standard of security for Congress or the Supreme Court?

[Rev. Arthur L. Kirkland]

I agree an investigation is warranted.

So was the shooting, and perhaps a commendation for the officer. Violent, disaffected criminals do not get to decide how close they can get to elected officials they are threatening. At least, not in a civilized society.

[M L]

Can’t have dirty regular people, with their unarmed protesting and whatnot, getting too close in physical proximity to the criminal politicians. Close enough = shot.

[Sarcastr0]

It wasn’t a protest.

Though yes, the Capitol Police should stop being so closed about things. Turns out, we’ve let them get away with being more opaque than most law enforcement for decades.

[Bob from Ohio]

“It wasn’t a protest.”

It certainly was.

Just like this was

https://www.newsweek.com/over-100-arrested-during-climate-protest-interior-department-some-reportedly-tased-1639484

Both involved “storming” a government building.

[Sarcastr0]

a group of protesters rushed the Interior Department lobby, injuring at least one security officer who was taken to a nearby hospital.

This is not good or helpful, but the intent and scope is vastly different than Jan 06.
These people were not hunting for the Secretary of the Interior.

[Bob from Ohio]

“intent and scope is vastly different than Jan 06”

They attempted to invade a government building, injuring police in the process.

They were seeking to disrupt part of the government.

So, same intent.

You got me on scope I guess, there were fewer than on January 6.

Both protests or neither. Which?

[Sarcastr0]

‘disrupt part of the government’ is some extremely carefully tailored scoping, which shows you know you’re full of it.

Your analogy is wrong, I explained why it’s different, and you tried to blow smoke.

I don’t even think you believe yourself at this point.

[Bob from Ohio]

My analogy is correct, I explained why it’s not different, and you tried to blow smoke.

[Sarcastr0]

A duckling is not a banana, even if both are yellow.

The intent was not ‘seek to disrupt part of government.’ It was to prevent the peaceful transition of power, via enthusiastic violence. That much is very clear from social media posts and videotape. And Trump’s words.

You want to myopically choose your question, you can do that, but it’s obvious to everyone what you’re doing.

[Bob from Ohio]

“obvious to everyone what you’re doing”

Yes, to show that the “insurrection” framing is stupid and just political smoke.

[Toranth]

“Preventing transition of power” – which wasn’t happening that day, anyway? The inauguration was still weeks away at that point.

But tell me, would a riotous attempt to prevent a Supreme Court Justice from getting consent from the Senate count under your standard? How about a riot attempting to prevent said Justice from being sworn in?

[Sarcastr0]

Toranth, don’t be an idiot. The intent was to stop the transfer of power, which was happening right there that day.

Your hypothetical about where the political power in America lies is a completely collateral issue, and your attempt to invoke it is lame as hell.

[Toranth]

No, there was no transition of power happening on January 6th, any more than it happened on December 14th, or any of the many days that the states certified their electoral slates.

The transition of power happened on January 20th, when Biden was sworn in as President. Before that, he had no power or authority. After that, he did. Do you understand this concept at all?

I’m also not surprised at your attempts to avoid discussing a series of riots by Left-wingers that attempted to prevent a Supreme Court Justice from being appointed, approved, or sworn in (aka, actually transitioning the power and authority of the office). It would be an unusually honest act by you to admit it even happened, as denying the obvious reality is your default response.

[Ben_]

Leftists are not “liberal”.

[Don Nico]

Agreed, Dilan. What is worse is that many were kept in solitary confinement. That is a clear human rights abuse of political prisoners as it would never be done for a simple trespassing violation.

[Rev. Arthur L. Kirkland]

Why were they held in solitary confinement?

If it were to protect them from other inmates — most of them were probably downscale roleplayers rather than genuine tough guys, and a reasonable person could infer that most were White supremacists to some degree — it would seem to be justified.

If it were for political reasons, that would be severely wrong.

[Sarcastr0]

I don’t think I’m sure about when solitary confinement would have been done – our system has been abusive for *ages*.

I’d hope this would help the push to end these practices, but not seeing much of a push for systemic change, just special pleading.

[mulched]

Relying on the DOJ to enforce congressional subpoenas (or contempt) is just as or more damaging, since there’s no accountability when DOJ refuses to for the president’s party.

[LawTalkingGuy]

I believe Chafetz has written extensively about inherent contempt as well.

[Brett Bellmore]

Yeah, Congress even used to have a jail in the basement. But the last time they actually exercised their power of inherent contempt against an administration was during the Teapot Dome scandal.

They’re a bit too chicken to get into a real fight with the executive branch.

[JohannesDinkle]

The January 6th insurgents were so stupid they attempted to overthrow the government without bring along any guns. In fact, so many were old and unfit that almost all reported deaths were from heart attacks and strokes.
If only they had been mostly peaceful they could have burned the thing down or at least looted everything.

[Archibald Tuttle]

Yes indeed. At least our founding fathers expected to hang if their revolution failed. The Jan 6 clowns didn’t expect any sort of punishment.

[Brett Bellmore]

Well, that’s because the founding fathers actually were having a revolution. The January 6th ‘clowns’ were just protesting.

[David Nieporent]

No. Stop lying. There was nothing to protest. They were attacking.

[Toranth]

Most were protesting. Some were rioting. A very few attacked specific people.

None were “insurrectionists” – as the DoJ has been forced to admit in court.

[Ed Grinberg]

“There was nothing to protest.”
Classic.

[Hugo S. Cunningham]

Trump, being Trump, couldn’t decide whether he really wanted to go through with it, or was just play-acting. In the future, if Josh Hawley (or, on the Left, Sheldon Whitehouse) is orchestrating a coup, you can be sure it will be pushed through by hard men who are determined to win.

[Snorkle]

Any action on the part of Congress would be redundant.

The entire country already holds old Three-Shirts in contempt.

[dwb68]

meh. Show me the man I’ll show you the crime.

[Ben_]

Using “administrative hearings” to work around the 4th and 5th Amendment rights and then opportunistic process crimes prosecutions to punish political enemies is what the protectors of norms do.

Systematic abuse of power to combat the menace of … mean tweets. Reserved for the exclusive use of only the goodest Good Guys.

[Sarcastr0]

This isn’t some automatic punishment’s. Bannon can testify if he wants to get out of it.

[Ben of Houston]

It seems to be the only reasonable thing to do. Sit there. Say nothing of value. Get yelled at. Mock the congresspeople in return. Call them hypocrites.

I see no benefit of playing hardball on this. At best, he’s just playing chicken to see how far they will go eliminating the executive privilege (maybe for future use in investigating the Biden administration?) At worse, he’s being stubborn for the sake of being stubborn.

[Bob from Ohio]

He wants the attention. Being a victim is good for business.

[Ben of Houston]

Don’t quote the rules of acquisition to me.
I was there when they were written.

[David Nieporent]

Neither the 4th nor 5th amendment have anything to do with this discussion. If Bannon wants to show up and assert his 5th amendment rights, nobody is stopping him. But neither the 4th nor 5th amendments give anyone the legal right to ignore a subpoena.

[Ben_]

Hence “work around”

[Sarcastr0]

Work around what?

Bannon is not being punished, he is not being searched. He is being compelled to answer questions.

Which he can still invoke the 5th to ignore.

[John F. Carr]

“Bannon’s spurning of the committee strikes at the heart of democratic governance”

No it doesn’t. Charging the Capitol with a noose in hand to hang people who vote the wrong way may, but refusing to testify in front of some politicians performing for the audience does not.

[Bob from Ohio]

“Charging the Capitol with a noose in hand to hang people ”

That would be very bad. Good thing it never happened.

[Jason Cavanaugh]

Tell us all again exactly what you DO remember from Civics class. I’m sure the response will be rather short.

[M L]

“Bannon’s spurning of the committee strikes at the heart of democratic governance ”

Lol, We’re being attacked! They cry as they go on the attack and crush civil liberties with blatant lies for excuses.

[Bob from Ohio]

A report that 5 people will read is in jeopardy!

[M L]

Do they really expect to be taken seriously with this:?

“an attempt by Trump’s supporters to overthrow the government by force . . . Insurgents”

[David Nieporent]

Intelligent people already take them seriously. Trumpkins are right out.

[Jason Cavanaugh]

It is not a ‘civil liberty’ to refuse to obey a lawful subpoena.

You people are the most ignorant Americans to have ever existed.

[M L]

Civil Liberties Are Being Trampled by Exploiting “Insurrection” Fears. Congress’s 1/6 Committee May Be the Worst Abuse Yet.

https://greenwald.substack.com/p/civil-liberties-are-being-trampled-8bf

[David Nieporent]

Glenn Greenwald agrees with you. QED.

[Moderation4ever]

The importance of coming down hard on Bannon is really to show others the behavior will not be tolerated. Bannon is a character, like Stone, and likely enjoys the attention. Other more important witnesses may not feel the same way and by showing resolution Congress may get more from others. I hope that the DOJ and the courts move quickly on this matter.

The former President and his administration do not have a winning record in the courts. They have relied on the courts more for delays rather than for judgements. I suspect this cases and the former Presidents lawsuits against the Presidential Achieves will have no more success than past lawsuits. So quick action is required to minimize delays.

[M L]

“Two leading Democrats — Senate Majority Leader Chuck Schumer and House Homeland Security Chairman (and Chair of the Select 1/6 Committee Bennie Thompson — demanded that US citizens *convicted of nothing* be put on the no-fly list, and succeeded, and it barely got noticed.

The no-fly list was widely regarded as one of the worst civil liberties abuses of the first War on Terror: unseen bureaucrats putting people on lists with no due process. It was imported onto US soil, but many are so petrified of 1/6 that nothing was said

https://twitter.com/ggreenwald/status/1450129727595896835

[M L]

One more GG tweet.

“The other oddity of the 2020 anti-police protests was once 1/6 came, many of the same factions supporting those protests suddenly became very pro-police: cheering FBI’s search, demanding long prison sentences, urging maximalist DOJ charges, sanctioning harsh pre-trial prison:

In 2020, police killing unarmed protesters was (rightly) viewed as a grave evil. In 2021, even questioning whether the unarmed Ashli Babbitt’s fatal shooting was justifiable was off-limits…
https://twitter.com/ggreenwald/status/1450225106681204738

[M L]

Well ya know, Bannon is an evil guy. He wants to *gasp* reduce immigration and enforce borders! So, I always say, if you don’t want to get locked up or killed, then just don’t be a Nazi.

[ReaderY]

I am very skeptical of the idea that executive privelege can be asserted by a former president.

Government offices and their priveleges are public property, not the property of an individuals. The Constitution entrusts the executive branch and its priveleges to the current President alone.

A former President can no more assert executive privelege than veto a bill. It my be that the current President will assert executive privelege or not based on political calculations rather than the long-term good of the country. Exactly the same could be the case regarding a veto decision. In both cases, courts may not interfere with decisions the constitution entrusts entirely to the President. And the decision whether to exert executive privelege or not, like the decision whether to veto or not, is one of those decisions.

[Commenter_XY]

ReaderY…I am not being smarmy. Truly, I am not. I read your comments a lot (agree with many, some I do not). I have noticed this in a few postings. The spelling is privilege (change the ‘e’ to ‘i’).

[Ben of Houston]

Reader. Let me give a counter-example.

A lawyer has privilege with his client. The lawyer resigns. Can the lawyer now testify about privileged conversations with his former client? Obviously not. That would make a mockery of the concept of privilege.

Now, can the lawyer testify about what his client did after he resigned? Obviously so. He has no confidentiality requirements for what his client did after he left.

This investigation covers what happened during Trump’s term in office. Thus, for anything that happened on January 6th, Trump has privilege, Biden does not. For anything that happens today, Biden has privilege, Trump does not.

Trying to argue otherwise just makes no sense.

[Moderation4ever]

An interesting example, but incorrect. The lawyer in your scenario has a direct business relationship with the client. In the case of Bannon his relationship was one with the then President and Bannon is not a lawyer. If the CEO of a company consults a company lawyer that discussion is privileged. When the CEO leaves the company, for whatever reason, the privilege moves to the new CEO. The new CEO may or may not determine the consultation is privileged. If the former CEO and the lawyer were talking about a property acquisition for the company the new CEO may hold the conversation confidential. If the former CEO was talking to the lawyer for advice on purchase a new home for his kids, the new CEO may rule the company lawyer can testify on the conversation.

[Ben of Houston]

Except that destroys any concept of privilege. The point of privilege is to enable honesty by providing protection. The central problem with political offices is that the successor will likely be openly hostile to your current office holder. Claiming that the current executive may overturn the privilege of his predecessor unilaterally is INSANE. There is no privilege if it can be retroactively revoked. That destroys any benefit that such privilege will provide. How can you be open and honest in such a situation?

Even in the case of a CEO, I would need some examples to show that it’s like you say. I confess that this is far beyond my knowledge, but it seems inconsistent with what I know.

[Moderation4ever]

I think your assumptions about privilege are overly broad. Privilege does exist but it is defined by a number of parameters. First is your relationship to the person you are speaking with, then there is the nature of your discussions, finally if the discussion involves a future crime. You can not hid a crime or refuse to talk about a crime that you knew about before it was committed. (can a lawyer check me out on the last point?)

[David Nieporent]

I confess that this is far beyond my knowledge,

That’s really the only thing in your post that was accurate. Perhaps you should have had the humility to start and stop there.

[David Nieporent]

We’ve already been over this stupid analogy. The issue is not whether the a-c privilege exists. The issue is who can assert it. The lawyer never has any say in the matter, so he’s completely the wrong analogy. The client, not the lawyer, controls a-c privilege. So the question here is: who’s the client? And the answer is the office of the presidency, not the guy who used to sit in the office. Just like a former CEO cannot assert a-c privilege on behalf of his former corporation. Only the current CEO can.

[not guilty]

The courts’ recognition of executive privilege is far more circumscribed than the attorney-client privilege. Reasoning by analogy to the latter simply doesn’t work.

[ReaderY]

And yes, the legislature has the power to investigate and collect evidence, and the power to compel its collection. It’s a legislative power at common law. And the constitution expressly vests all legislative power in Congress.

[dwshelf]

Because Trump.

[Moderation4ever]

Because Trump failed to uphold his oath of office and to arrange for a peaceful transition of power as required in our Constitution.

[Michael Ejercito]

After that whole Russian collusion nonsense?

I am sure you have heard of the concept of payback.

[Moderation4ever]

Yes. Payback is the way for bullies and low-lifes. Right up the former President’s ally.

[Sarcastr0]

Even taking your facts, it does not speak well of you that you think ‘payback’ absolves the President of anything, legally or morally.

[Jimmy the Dane]

When liberals pull out all the stops to try to undermine a legitimately elected President merely because they don’t like him I think any tactic is on the table. When you go complaining just remember who started this whole thing…

[David Nieporent]

When you go complaining just remember who started this whole thing…

GOP leader’s top goal: Make Obama 1-term president.

[Captain Motion]

This is sarcastic humor, right?????

[Jimmy the Dane]

There was no attempt to overthrow any government. It was just tourists taking pictures. The committee is not legitimate and its investigation is a sham so therefore anything it points out is also not legitimate.

[David Nieporent]

Troll better.

[Greg J]

“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.”

No, they didn’t, and anyone who claims they did is either an ignoramus or a po9litical driven hack.

An actual attempt to “overthrow the government by force” would have involved people with guns, and several hunderd dead Democrat members of Congress.

If that was an attempt to “overthrow the government by force”, then so were the Democrat protests during the Kavanaugh nomination fight, and so was the invasion of gov’t offices last week, again by Democrats.

What pathetic drivel. Ah, well, at least I know to never again listen to anything from Josh Chavetz

[Captain Motion]

All of this “could” and “should be” prosecuted would give one hope if we had a real AG, but this mini-Barr Garland, tellingly protective of the biggie miscreants from the Trump administration, is not going to do anything against this power broker. I wish Biden hadn’t so expansively preached that he wouldn’t interfere with the DOJ and would simply say go after the seditionists and their accessories or get out. DOJ functions by borrowing the president’s power; it has none of its own. POTUS needs to take charge.