Congress recently voted (229—202) to hold sometime Trump whisperer Steve Bannon in criminal contempt for defying a subpoena to testify in the Congressional investigation of the January 6 riot. In refusing to comply, Mr. Bannon asserted executive privilege. All but 9 Republicans voted against holding him in criminal contempt.
It is certainly true that partisan motives were behind at least some of the votes in favor. And it is also true that members of both parties have ignored Congressional subpoenas in recent years without penalty. The Department of Justice has repeatedly declined to prosecute criminal referrals for contempt of Congress.
Making things worse, Congress has studiously ignored dealing forcefully with officials who lied under oath at Committee hearings. James Clapper, former Director of National Intelligence, and James Brennan, former CIA Director come to mind. Then there are lesser figures like Lois Lerner whom the Justice Department refused to prosecute after a criminal referral.
In the case of Steve Bannon we have an open and shut case of criminal contempt. Bannon argues, along with former President Trump, that he is covered by executive privilege. That argument is without merit. Bannon came and went as a member of the administration long before the events of January 6, 2021, the subject of the subpoena. His conversations with Trump during the time he was a civilian are simply not covered by executive privilege. And pretty much everyone knows it, including the invertebrate Republicans who voted against issuing the contempt citation.
If Bannon is not held to account for his willful refusal to comply with a lawful subpoena, the power of Congress to hold the executive branch to account will be diminished even further than it already is. It would be nice to think that more than 9 of 211 Republicans would be capable of figuring that out, but apparently they suffer from the paralyzing fear that Donald Trump will belch forth disapproval of them for not being sufficiently obsequious.
Mr. Bannon may invoke his 5th amendment right against self-incrimination. Should he decide to do so Congress could be faced with the interesting issue of whether to grant him some sort of immunity in order to compel his testimony.
It should also be noted that there is a jail cell in the Capitol building where Congress could legally order Mr. Bannon be held until he testifies before the House committee. In the event that Mr. Bannon continues to defy the subpoena and Justice declines to prosecute, that would be a fitting solution to Bannon’s ongoing defiance of a legal order.