Podcast host, Trump advisor and collared shirt aficionado Steve Bannon has been held in contempt of Congress, by a 229-202 vote, for refusing to respond to a subpoena issued by a House committee investigating the January 6th domestic terrorist attack on the Capitol. That’s great, but what does that really mean?
Well, first, nine Republican members of the House who voted with Democrats to hold Bannon accountable–Liz Cheney (Wyom.), Brian Fitzpatrick (Penn.), Anthony Gonzalez (Ohio), Jaime Herrera Beutler (Wash), John Katco (NY), Adam Kinzinger (Ill.), Nancy Mace (S. Car.), Peter Meijer (Mich.), and Fred Upton (Mich.)–will likely face a massive influx of cash to far-right opponents in the GOP primaries for the midterms.
After Speaker of the House Nancy Pelosi signs the referral, it for will go to the Department of Justice, which will decide how to proceed. The two most obvious options are that the DOJ could do nothing with the referral, or they could charge Bannon criminally. But a third option also exists.
Scores of people in United States history have been held in contempt of Congress, but in most cases, little if anything typically come out of the citation. In the last fifty years, most contempt citations have resulted in the cited party providing the requested information to Congress. In cases where the individuals was found in contempt for lying to Congress, some have been sentenced to jail.
In the two most notable recent cases–Attorney General Eric Holder in 2012 and IRS director Lois Lerner in 2014–nothing happened because the Republican-led House voted to refer two Obama appointees to the Obama-appointed DOJ for charges, and the DOJ did not find sufficient cause to pursue the case.
The same outcome happened when a Democrat-led Congress found Attorney General William Barr and Secretary of Commerce Wilbur Ross in contempt in 2019: the Barr-led DOJ refused to pursue charges.
It’s possible, but unlikely, that the Biden/Garland DOJ would refuse to act on this referral. Bannon has refused to recognize the authority of Congress to compel him to provide the information, relying on a false claim of executive privilege pushed by Donald Trump–and declined by the current White House.
The Department of Justice could file criminal charges against Bannon and set a trial for Bannon in the US District Court for the District of Columbia. If found guilty, Bannon would face not less than one month nor more than twelve months in jail and a fine of not more than $100,000 or less than $100. Bannon, of course, would likely file a series of appeals that would drag out the proceeding until Republicans take back the House (at which time the contempt citation would be moot because Republicans would kill the investigation) or a Republican is in the White House to push the DOJ to drop criminal charges (a la Michael Flynn).
But there is another pathway that would end in more gridlock: the Justice Department could put the case back in Congress’s lap with a recommendation of a civil, not criminal, contempt charge. A civil charge would result in Congress voting to undertake a lawsuit. If Bannon is found guilty, the court could impose a series of sanctions designed to compel Bannon to hand over the information requested, which would increase the longer he held out. Congress and Bannon’s legal team would likely then enter into negotiations to provide the committee with information to avoid racking up fines, which is the way various contempt referrals from Congress in the past have been resolved.
The problem with all these scenarios is that Bannon cannot, in any circumstances, be compelled to testify in person. He can be forced to provide papers and other documentation, but not oral testimony. Bannon can simply stay quiet, withholding key information from the committee. In that case, a separate contempt charge can be filed that may result in additional fines or even jail time, but Bannon then only has to hold out in a prison cell until a judge determines that no amount of imprisonment would compel Bannon to speak.