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The House of Representatives has voted to recommend criminal contempt of Congress charges against Steve Bannon, the former Trump White House official who has refused to honour a subpoena to give evidence before the House committee investigating the 6 January Capitol insurrection.
The 229 votes in favour of the resolution against Mr Bannon included all 220 Democrats and just nine Republicans – Representatives Liz Cheney of Wyoming, Adam Kinzinger of Illinois, Brian Fitzpatrick of Pennsylvania, Peter Meijer and Fred Upton of Michigan, Anthony Gonzalez of Ohio, John Katko of New York, Jamie Herrera Beutler of Washington, and Nancy Mace of South Carolina – with 202 other GOP members voting against finding the former Breitbart News executive in contempt for refusing to provide the committee with documents and testimony concerning his role in the worst attack on America’s legislature since the 1814 burning of Washington.
With the exception of Mr Fitzpatrick, each of the Republicans voting to hold Mr Bannon in contempt also voted to impeach Mr Trump in the wake of the 6 January insurrection.
The House’s vote represents an escalation in what is shaping up to be a battle between former president Donald Trump and his advisors, and the committee of seven Democrats and two Republicans who are seeking to understand how a pro-Trump mob came to briefly occupy the halls of Congress and disrupt the certification of President Joe Biden’s electoral college victory.
Speaking on the House floor during debate over the resolution, select committee chairman Bennie Thompson of Mississippi said Mr Bannon’s testimony is necessary to the committee’s effort to ensure that what happened on 6 January never happens again, and stressed that the resolution holding him in contempt “isn’t about punishing Steve Bannon”.
“Steve Bannon has led us down this path by refusing to cooperate in any way with our investigation. We believe Mr Bannon has information valuable to our probe... he’s clearly an important witness, so we subpoenaed him. And unlike other witnesses who have engaged and worked with our team to find a way to cooperate, Mr Bannon told us he wouldn’t comply because the former president told him not to. He hid behind vague and baseless claims of privilege. That’s just not acceptable,” Mr Thompson said. “Mr Bannon stands alone in his defiance and we will not stand for it. We will not allow anyone to derail our work because our work is too important.”
Mr Bannon, who on 5 January told listeners of his War Room podcast that “all hell” would “break loose” the next day, when Mr Trump was set to speak at a rally as the House and Senate were convening in a joint session, was served with the subpoena by US marshals last month.
But despite being commanded to respond by 8 October, he has refused to do so on grounds that he is following directions from Mr Trump’s counsel, who in a letter last month told Mr Bannon and other ex-Trump advisors who have been subpoenaed by the committee that the information requested is protected by executive privilege, a legal doctrine that shields conversations between a president and his top advisors.
House majority leader Steny Hoyer, a Maryland Democrat, called Mr Bannon’s defiance “a demonstration of his contempt not only for Congress, but his contempt for the constitution and his contempt for the law” and said it was “unacceptable and obstructive to this process of uncovering the full story of that day’s attack on the Capitol”.
“He must be found in contempt, not as a Democrat, not as a Republican, but on behalf of this institution and the people that we represent. Withholding information on the events of that day from the committee is no less than an act of a betrayal of the American people and of democracy,” Mr Hoyer said.
Mr Kinzinger, one of the two Republicans on the committee, said Mr Bannon’s “wilful disregard for the select committee’s subpoena demonstrates his utter contempt for the American people’s right to know how the attacks on January 6 came about”, and said his decision not to cooperate “defies the rule of law and rejects the will of the American people”. He then slammed Mr Bannon’s claim that his conversations with Mr Trump are shielded by privilege as “a ludicrous legal argument”.
Most reputable legal scholars say Mr Bannon’s and Mr Trump’s claims of privilege are dubious at best. Only the current president – Mr Biden – can invoke executive privilege, and he has thus far declined to do so, citing what White House press secretary Jen Psaki called the “unique and existential threat” posed by the former president’s attempt to overturn the 2020 election, which culminated in the pro-Trump mob storming the Capitol in hopes of disrupting certification of the 2020 electoral college results.
Experts also say that Mr Bannon’s conversations with Mr Trump could not conceivably be shielded by the privilege because he left government service in August 2017, shortly after the “Unite the Right” neo-Nazi rally at which an attendee killed an anti-racism protester with his car.
The contempt resolution will next be “certified” by House speaker Nancy Pelosi and transmitted to the Department of Justice. Although US law states that the US attorney for the District of Columbia “shall” present the case to a grand jury, it is unclear whether attorney general Merrick Garland will permit acting US attorney Channing Phillips to do so.
When asked if he would act on a referral of Mr Bannon during a House Judiciary Committee hearing on Thursday, Mr Garland told chairman Jerrold Nadler that the department “recognises the important oversight role that this committee and House of Representatives and the Senate play with respect to the executive branch”, and said it would “do what it always does in such circumstance: apply the facts and law and make a decision consistent with the principles of prosecution”.
In an interview shortly before debate on the contempt resolution began, Mr Thompson told The Independent that the committee considered and rejected the idea of using the House’s inherent contempt authority – which would have allowed the House Sergeant-at-Arms to arrest and detain Mr Bannon – for the first time since the 1930s in favour of the option invoked on Thursday because of the need to keep the investigation moving on a swift time frame.
“We made a decision as a committee, that criminal contempt would be a better direction,” he said. “We've done our job, now we would hope that the attorney general does his”.
It’s unclear whether Mr Garland will act on the House’s referral. The last time a person faced contempt of Congress charges based on such a referral was grand jury indicted Reagan administration official Rita Lavelle based on a referral from then-House Energy and Commerce Committee chairman John Dingell. Ms Lavelle was later found not guilty after a jury trial, and the Justice Department has since then generally declined to prosecute current and former executive branch officials based on contempt of Congress referrals.
Representative Debbie Dingell, a Michigan Democrat and the widow of Mr Dingell (who passed away in 2019), told The Independent that her late husband would have supported the push to refer Mr Bannon to the Justice Department.
“Mr Dingell would tell people that Congress has a very serious responsibility for oversight of the executive branch... he believed it was one of the most important responsibilities that he had,” she said. “He would believe that what we’re doing today is critical and would hope that we will continue to be more vigorous in our oversight.”
Speaking a short time later on the floor, California Representative Adam Schiff said enforcing the select committee’s subpoena was necessary to maintain the legislative branch’s legitimacy, and warned of the consequences that could befall the legislature if his colleagues fail to act.
“If we fail to uphold Congress’ power to compel information then we cease to be a co-equal branch of government, unable to perform our oversight or check any abuses of executive power,” Mr Schiff said.
“Take away a court’s power to subpoena witnesses, and it fails to be a court. Take away the congress’ ability to do the same, and it fails to be a congress. Becoming instead a mere play thing for a corrupt executive. Do not believe for one moment that if we fail to hold Steve Bannon accountable that he will be the exception – he will become the rule”.
But not all of Ms Dingell and Mr Schiff’s colleagues showed the same zeal for oversight on Thursday. The 202 GOP members who voted against the contempt resolution did so at the behest of House minority whip Steve Scalise and minority leader Kevin McCarthy, who on Wednesday distributed a notice to Republican members recommending a “no” vote on the grounds that the committee “is more interested in pursuing a partisan agenda to politicise the January 6th attack rather than conducting a legitimate good faith investigation into the security failures leading up to and on that day”.
Republicans, following the lead of Mr Trump, have routinely denounced the committee’s investigation as a partisan witch-hunt even though two of the committee’s members – Ms Cheney and Mr Kinzinger – are members of the House Republican Conference. Both were appointed by Ms Pelosi after Mr McCarthy refused to allow other Republicans to participate because Ms Pelosi would not allow the GOP leader to appoint two members to the committee who could end up being witnesses in the investigation.
Speaking on the House floor before the vote, Indiana Representative Jim Banks – one of the two Pelosi rejects – accused the committee of being “engaged in an unconstitutional political investigation ... a sham investigation conducted by a sham committee that refuses to answer real questions about what happened on January 6th”. He also suggested that the former Trump advisor was targeted because committee members dislike his politics.
Mr Thompson responded that the committee is “not seeking actually information from Mr Bannon because of his opinions”, but subpoenaed him “because we believe he has knowledge of relevant facts that we need to discover”.
During his weekly press conference on Thursday, Mr McCarthy claimed that the subpoena to Mr Bannon is “invalid”, but when pressed further on how the subpoena lacks validity, the Republican leader struggled to answer. He appeared to argue that the committee lacks legitimacy because “the minority was not able to participate”, but such an argument doesn’t match reality because Ms Cheney and Mr Kinzinger are both Republicans.
Since the House approved a resolution creating the select committee earlier this year, Mr McCarthy and other Republicans have complained that the congressional investigation of what happened that day has been left to what they describe as a partisan body. Yet it was Mr McCarthy and Senate Minority Leader Mitch McConnell – acting on direction from Mr Trump – who whipped GOP Senate votes to sustain a filibuster of legislation that would have created a bipartisan, bicameral commission with equal representation from both parties.
Even as Republicans voted against enforcing the House’s own prerogatives, the two GOP committee members and the chamber’s Democrats are adamant that Mr Bannon’s testimony is important to understanding what happened on 6 January, and that holding Mr Bannon accountable is necessary to protect Congress’s ability to compel witnesses to cooperate with legitimate inquiries as part of the body’s oversight responsibilities.
Speaking in defence of the committee’s work on the House floor, Ms Cheney said she and her colleagues are engaged in investigating all aspects of what happened before and on 6 January, including whether Mr Trump, Mr Bannon, former New York City Mayor Rudolph Giuliani, and others plotted to delay the counting of electoral votes as part of a plot to undo the results of the 2020 election.
The committee needs to hear from Mr Bannon to get to the bottom of what happened, she said.
“Mr Bannon’s own public statements make clear he knew what was going to happen before it did, and thus, he must have been aware of and may well have been involved in the planning of everything that played out on that day,” she said. “The American people deserve to know what he knew and what he did.”