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The House of Representatives voted Thursday to find former adviser to President Trumpfor defying a subpoena from the House select committee investigating the on the U.S. Capitol. He was called to appear before the committee last week but failed to appear.
The matter now lands at the Justice Department, which will weigh whether to prosecute the former White House chief strategist.
Bannon's lawyer denied his absence was an act of "defiance" against the subpoena, and pointed to instructions from Mr. Trump's legal team stating that they were invoking "executive and other privileges" and directed Bannon "not to produce documents or give testimony that might reveal information" that the former president's lawyers are trying "to legally protect," according to a letter to the committee from Bannon's attorney obtained by CBS News.
Jonathan Shaub, an assistant professor at the University of Kentucky law school, said the Justice Department has "traditionally not prosecuted individuals who are relying on executive privilege for criminal contempt of Congress."
But Shaub also described Bannon's claims of privilege in this case as "weak."
"Executive privilege only applies to official duties - conversations the president has about his official duties as president, and it seems highly unlikely that Bannon was advising President Trump about those from what we know so far," Shaub said.
Bannon had not been in the Trump administration for over three yearsin August 2017.
Last week,his predecessor's attempt to assert executive privilege for the documents the committee requested as part of its review, and the White House said it would give the panel access to federal records connected to the Trump White House and the January 6 insurrection.
On Monday,in federal court against the committee, its chair, the National Archives and its director, in an effort to stymie the release of documents.
The matter now falls to the U.S. attorney in D.C., who will receive the criminal referral from Congress and will be tasked with deciding whether to bring charges. Congress is unable to impose any punishment on individuals who are not members.
At a House Judiciary Committee hearing Thursday morning, Attorney General Merrick Garland told lawmakers that it would handle the Bannon case and other potential referrals from the House select committee as "it always does in such circumstances." It will, he said, "apply the facts and the law and make a decision, consistent with the principles of prosecution."
The referral to the Justice Department is one of two procedures adopted by Congress in 1857 as a way of penalizing reluctant witnesses. The other option would be "inherent contempt," a largely dormant congressional power that would call on the sergeant-at-arms to detain Bannon. However, the Capitol campus does not have a jail cell. (The last time anyone was taken into custody in the Capitol was in 1889, when a Senate committee witness was arrested.)
If the U.S. attorney in D.C. decides to bring charges against Bannon, he will face a misdemeanor charge. If convicted, he could be sentenced to up to one year in prison and would face a maximum fine of $100,000.
Should the Justice Department decline to bring charges, the committee can sue Bannon to try and compel his testimony. While that avenue would take more time, there are more recent examples, such as the House Judiciary Committee's 2019 lawsuit to compel former White House Counsel Don McGahn's testimony related to the Mueller Report. The years-longuntil after the following election when the Justice Department and the committee reached a deal.
Rob Legare contributed reporting.
This story has been updated to correct the maximum financial penalty Bannon could face. It is $100,000.