The House of Representatives voted to hold longtime Donald Trump adviser Steve Bannon in criminal contempt for refusing to comply with a congressional subpoena issued by a panel investigating the Jan. 6 attack on the Capitol.
Only nine Republicans, two of whom serve on the panel investigating the Jan. 6 attack, voted to hold Bannon in criminal contempt. The contempt decision will now be formally referred to the Justice Department, which will decide whether to take the case to a grand jury and pursue charges against Bannon.
Even outside the White House, Bannon was advising Trump about how to handle the aftermath of the election. A new book about the period from Washington Post reporters Bob Woodward and Robert Costa reported that Bannon told Trump that raising questions around the election would “kill the Biden presidency in the crib.” Bannon acknowledged the comment on an episode of his podcast last month.
Whether Bannon faces criminal charges for defying the subpoena will be up to the US attorney’s office in Washington. Federal prosecutors are not required to act on a contempt referral from Congress. In advance of an earlier vote this week by the Jan. 6 committee to recommend the full House consider holding Bannon in contempt, a spokesperson for the US attorney’s office released a statement explaining that if a referral did come their way, “the Department of Justice, as with all criminal referrals, will evaluate the matter based on the facts and the law, consistent with the Principles of Federal Prosecution.”
Bannon was scheduled to appear before the panel for a deposition last week. Instead, his lawyer sent a letter a day earlier claiming Bannon “is exercising his executive privilege,” per the direction of Trump’s lawyer.
Executive privilege typically protects internal communications between presidents and the top aides who advise them from public disclosure, and that privilege can apply for a period of years after a president leaves office. Bannon, however, was not officially working in the White House during the period of time the committee is investigating.
A former president can assert executive privilege over their administration’s records, but that can only be enforced with approval from the incumbent. President Joe Biden rejected Trump’s privilege claim and instructed the National Archives to provide Congress with White House documents related to their request. Trump is suing to try to stop the National Archives from turning over records to the committee; that production is set to happen on Nov. 12.
The White House previously informed Bannon’s attorney that it would not support his claim of executive privilege regarding his conversations with Trump because they were “not in the public interest.”
Rep. Bennie Thompson, chair of the panel investigating the attack, rejected Bannon’s claim of executive privilege promising to move forward with contempt proceedings.
“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 wrote in a statement Oct. 14.
Last Friday, Biden told reporters that he hoped the Justice Department would prosecute anyone who defied the subpoenas. That created an awkward situation for DOJ, given Attorney General Merrick Garland’s pledge to make decisions without influence from the White House. Spokesperson Anthony Coley responded in a statement shortly afterward, saying, “The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop.”
Zoe Tillman contributed to reporting.