Attorney General Merrick Garland’s announcement that former Trump aide Steve Bannon was indicted by a federal grand jury for criminal contempt of Congress for flaunting the Jan. 6 committee investigating the attack on the Capitol has led some to believe that this could represent a turning point in the yearslong effort by House Democrats to conduct oversight of the Trump administration.
Don’t count on it.
Criminal contempt is a difficult charge to prosecute, which is one reason why the last referral for criminal contempt of Congress was in 1982, during the Reagan administration. Bannon’s response to the committee was so ham-handed and flimsy that he practically goaded the Justice Department to prosecute him.
Other Trump administration officials—such as former chief of staff Mark Meadows, who defied an order to appear for a deposition on Friday—have taken a more sophisticated approach that would make a prosecution much more difficult. So while the Bannon indictment certainly sends a message to anyone who might defy a congressional subpoena—like “coup memo” author John Eastman or former DOJ official Jeffrey Clark—don’t expect more prosecutions to follow. Smart attorneys can help Meadows and others avoid Bannon’s fate.
Unlike Meadows and former Trump official Kash Patel, Bannon did not attempt to negotiate with the committee to narrow the scope of the subpoena. In fact, Bannon’s attorney did not communicate with the committee until over seven hours after Bannon was supposed to testify, as the House noted in its criminal referral.
In that letter, Bannon’s attorney did not raise any plausible privilege claim or identify categories of documents—or subjects of testimony—that could potentially be privileged. Instead, he claimed that Bannon would be “unable to respond” to the subpoena at all because former President Donald Trump wrote a letter to Bannon claiming executive privilege. (Bannon last served in the White House in 2017.)
That’s not how any type of legal privilege works. It must be asserted with respect to specific statements, documents or testimony. It is not a blanket concept that shields people from saying anything about any subject. What Bannon said on his podcast in early January, records of which were subpoenaed by the committee, is not subject to executive privilege.
A savvy response to the subpoena would have identified plausible subjects of testimony, or categories of documents, that could arguably be subject to executive privilege. Unlike Meadows, who was an executive branch employee at the time, any assertion of executive privilege by Bannon is suspect. But, at times, the Justice Department has suggested that executive privilege could apply to conversations between White House officials and individuals outside the executive branch. Bannon and his team didn’t even try to make that argument.
Rep. Bennie Thompson (D-Miss.), the Jan. 6 committee’s chair, responded to Bannon’s attorney, demanding a privilege log detailing any documents being withheld based on specific privilege claims and stating that they expected Bannon to appear in person to assert privilege regarding testimony, threatening a criminal referral if he did not comply. In response, once again, Bannon’s attorney adopted an approach of vague and categorical refusal.
After Bannon failed to appear for a second time, Thompson wrote another letter making clear that the committee would consider initiating contempt of Congress procedures and asked him to raise “any additional issues” regarding Bannon’s refusal to comply with the subpoena. Bannon and his team didn’t respond at all. No negotiation, arguments regarding privilege, or discussion of specific documents or testimony. Given this extremely insufficient response to the subpoena, it’s no wonder that Bannon was indicted.
But despite his own best efforts, the prosecution of Bannon will not be easy. (The last person actually convicted of contempt was Richard Helms in 1977.) For example, Bannon can assert an “advice of counsel” defense, waiving privilege and calling his lawyer Robert Costello to testify that he gave Bannon advice that Bannon relied on in good faith not to comply with the subpoena.
But Bannon’s missteps thus far have been so numerous, it would not be surprising if he is ultimately convicted. But that doesn’t mean that other Trump aides will face indictment, much less conviction. Meadows, who now faces possible contempt proceedings, hired a prominent lawyer who engaged in extensive negotiations with the committee over the scope of his testimony before he finally refused to testify in recent days.
Unlike Bannon, Meadows was employed by the executive branch on Jan. 6, and as chief of staff, he was the sort of close adviser that executive privilege is typically understood to apply to. It’s much easier for him to make plausible claims of privilege than it would have been for Bannon to do so. While his recent decision not to testify at all carries some risks, he has not ruled out testifying eventually.
Meadows’ latest response to the committee is that “the courts will have to resolve” the conflict between Trump’s instructions to him and the committee’s subpoena. He has not ruled out producing documents to the committee, and his attorney claims his law firm is searching for records in response to the subpoena. While Meadows has refused to comply with the subpoena, the record this creates is messier and would be more difficult for the Justice Department to pursue in a criminal indictment.
That doesn’t mean we won’t hear from Meadows eventually. A federal judge recently found that Trump’s lawsuit to stop the production of records created during his administration was without merit, and the D.C. Circuit Court of Appeals will consider the issue soon. It’s possible that courts could ultimately resolve this issue and leave Meadows in a position where he must testify about certain matters, even if some of his communications with Trump were subject to executive privilege.
But as House Democrats have learned the hard way, it can take time for cases to wind their way through the legal system. Don McGahn was subpoenaed by the House Judiciary Committee in April 2019 and did not testify until over two years later. With a mid-term election less than one year away, time is not on their side, and they can’t count on the rest of their witnesses to be as unsophisticated and foolish as Bannon.