The House of Representatives on Thursday voted to hold former Trump adviser Steve Bannon in contempt of Congress and to refer him to the Justice Department for criminal prosecution, following Bannon’s refusal to cooperate with the bipartisan investigation into the Jan. 6 insurrection.
The vote was 229 votes for and 202 votes against.
A total of nine Republicans voted for the criminal referral, which was several more than had been expected by some on Capitol Hill who spoke to Yahoo News beforehand. Two of those Republicans — Reps. Liz Cheney of Wyoming and Adam Kinzinger of Illinois — are on the House select committee investigating the Capitol riot.
The Justice Department will now decide whether to pursue a criminal prosecution. Attorney General Merrick Garland did not commit one way or another during testimony on Thursday before Congress. Contempt of Congress is a federal misdemeanor charge punishable by up to one year in prison and a maximum fine of $100,000.
“The Department of Justice will do what it always does ... apply the facts and the law and make a decision consistent with the principles of prosecution,” Garland said.
But the Biden White House counsel’s office has said it does not see any legitimate reason why Bannon’s conversations with former President Donald Trump about the insurrection, and any coordination beforehand in an attempt to overturn the 2020 election, would be protected by executive privilege.
Bannon worked as Trump’s chief political adviser during the 2016 campaign and the first several months of his administration. Although he was pushed out of his position, he allegedly played a crucial role in getting Trump to return to Washington from Florida on Jan. 6 to make a concerted effort to stop the certification of the 2020 election in Congress.
The select committee voted unanimously on Tuesday to refer Bannon for criminal prosecution. During the floor debate on Thursday before the full House vote, members debated the issue. Republicans said the Jan. 6 investigation was a distraction from other matters needing attention in the country.
“Many of our colleagues would rather talk about anything else. I think I know why. I think they are performing for an audience of one,” Rep. Bennie Thompson, D-Miss., the chairman of the select committee, said.
And Cheney, who is the vice chair of the committee, posted a video on Twitter of Bannon talking on Jan. 5, the day before the insurrection, that she has said indicates that “Mr. Bannon had substantial advance knowledge of the plans for Jan. 6 and likely had an important role in formulating those plans.”
On Jan. 5, Bannon said on his podcast that “all hell is going to break loose tomorrow.”
“It’s going to be moving, it’s going to be quick. This is not a day for fantasy. This is a day for maniacal focus. Focus, focus, focus. We’re coming in right over the target, OK? This is the point of attack we’ve always wanted,” Bannon said.
The Justice Department will need to determine whether it should prosecute him despite a lawsuit filed this week by Trump’s attorneys claiming that Bannon’s counsel to him is protected by executive privilege.
Legal expert Jonathan David Shaub, a former Justice Department lawyer who worked in the Office of Legal Counsel, which advises the president on matters of executive privilege, has told Yahoo News that Bannon’s conversations with Trump leading up to Jan. 6 would clearly not relate to the president’s official duties, so a judge would not find merit in Trump’s claims.
Yet the Justice Department precedent has been to allow presidents to shield those who were not in the executive branch from full cooperation with Congress, which would apply to Bannon, who was out of government entirely beginning in August 2017.
“In my view, [the Justice Department] will likely not prosecute without an explicit waiver of any potential privilege claim by Biden,” Shaub said.
Biden has already waived executive privilege for documents related to Jan. 6 that the select committee requested from the National Archives, and on Monday the Associated Press obtained a letter from the White House to Bannon's attorney that said executive privilege does not apply to him.
“President Biden’s determination that an assertion of privilege is not justified with respect to these subjects applies to your client’s deposition testimony and to any documents your client may possess concerning either subject,” deputy White House counsel Jonathan Su wrote.
That is probably the green light from Biden that the Justice Department needs to prosecute. And now that Trump has sought to delay a trial with a lawsuit, “a court may dismiss Trump or Bannon’s arguments based on executive privilege as frivolous and order Bannon to comply relatively quickly, meaning a matter of a few months, including the appeals, opposed to years,” Shaub said.
But the Justice Department may also want to see how the civil suit process goes on the issue of privilege before launching its prosecution, if the suit moves expeditiously, Shaub told Yahoo News.
Thompson said that so far, Bannon is the only person to refuse to work with the committee. “I want to make it clear just how isolated Mr. Bannon is,” he said Tuesday.
“We have reached out to dozens of witnesses," he added. "We are taking in thousands of pages of records. We are conducting interviews on a steady basis.” So far, two other top officials close to Trump — former White House chief of staff Mark Meadows and former Pentagon official Kash Patel — have cooperated with the panel.
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