Former White House strategist Steve Bannon has been refusing to answer lawmakers’ questions about the Trump-Russia investigation — and they’re so tired of it that they’re considering holding him in contempt of Congress.
The House Intelligence committee could vote on whether or not to discipline Bannon as early as Monday. If lawmakers vote yes, there are three different kinds of contempt charges they could use.
First, there’s “inherent contempt” — which could result in Bannon being held in Congress’s very own jail if he refuses to comply with their subpoena. But according to Andy Wright, a former White House lawyer in the Obama administration, that kind of measure hasn’t been used in around a century and is unlikely to be taken up now.
There’s also “criminal contempt,” which means that Congress could turn to the Department of Justice to prosecute Bannon for refusing to comply with their subpoena. But that route also seems unlikely, since the Department of Justice has traditionally resisted prosecuting executive branch officials when they’re following the president’s orders.
And finally, there’s “civil contempt,” a rare but occasionally used technique for obtaining information. Wright sees it as the most likely out of the three.
If Congress chooses the third, it would have to get a judicial order from a federal court to uphold the demand that Bannon testify. If the court decides that Congress is right, it could issue an order requiring the former White House strategist to testify — and arrest him for failing to follow that order.
The court could keep Bannon detained in jail until he agrees to cooperate with the order. And crucially, Wright says, Trump wouldn’t be able to pardon Bannon if he was in jail for that reason.
Lawmakers are angry about Bannon’s refusal to cooperate
Lawmakers are growing deeply impatient with Bannon’s stonewalling on the Trump-Russia investigation.
During a four-hour closed-door meeting with the House Intelligence Committee on Thursday, Bannon refused to comply with most lawmakers’ questions, except for 25 that had been prescreened by the White House. Bannon missed previously scheduled hearings and has now refused to answer questions three times in a row.
Members of Congress are angered by his behavior; they’re trying to obtain vital information required for understanding the connections between Trump’s affiliates and Russia. The House Intelligence Committee’s investigation is running in parallel to separate investigations by the Senate Intelligence Committee and the Department of Justice.
After Thursday’s session, Rep. Trey Gowdy, a South Carolina Republican on the House Intelligence Committee, said he was “not okay” with Bannon’s refusal to cooperate with questions.
Bannon has repeatedly invoked executive privilege to justify his refusal to fully cooperate with the House probe — a legal claim the president can use to protect the confidentiality of his conversations, and that at times can apply to his staff. Some members of the committee were skeptical.
“The breadth of that claim of executive privilege is breathtaking and insupportable and indeed, at times, it was laughable,” Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, told reporters Thursday.
Some experts say that the White House’s sweeping use of executive privilege to get its former staffers to block inquiries from lawmakers appears to be entering unprecedented legal territory.
“Executive privilege is an amorphous concept,” William Banks, a professor at the Syracuse University College of Law and a former special counsel to the Senate Judiciary Committee, told the Washington Times in January. “It has never been tested the way it could soon be tested.”
Lawmakers want to force Bannon to take them seriously
Analysts say Bannon appears to be complying more with special counsel Robert Mueller’s investigation into possible collusion between the Trump campaign and Russia than with the House Intelligence Committee.
According to NBC News, Bannon spent some 20 hours in conversations with Mueller’s team this week.
Some members of the House Intelligence committee reportedly believe Bannon is cooperating more with Mueller, who can more easily enforce subpoenas by threatening to apply criminal charges than lawmakers can.
Bannon’s recent behavior has managed to do something exceedingly rare: unite Republicans and Democrats on the committee.
“At some point, Congress’s institutional interests outweigh their partisan interests,” Wright told me. “It’s bad for the committee’s authority to look like it’s toothless.”
Holding Bannon in contempt could be a way for the House committee to show that’s not the case.