Attorney General Merrick Garland has been under tremendous political pressure to indict Bannon since the House referred the Trump ally to the Justice Department for contempt on October 21.
Without an indictment, critics have said, there’s doubt over how much power the House January 6 committee has to compel cooperation from former White House and Trump administration officials. Friday, former White House chief of staff Mark Meadows failed to appear for a deposition, sources familiar with the investigation told CNN, setting up a potential showdown that could lead to the panel beginning a criminal referral process against him.
And last week, former Trump Justice Department official Jeffrey Clark, who had been subpoenaed, appeared before the committee for more than an hour but declined to answer questions.
The House January 6 committee subpoenaed documents and testimony from Bannon in early October.
Bannon’s lawyer, Robert Costello, told the committee the former Trump adviser would not be cooperating with the investigation because he had been directed not to by Trump. Pointing to claims from Trump that the documents and testimony being sought was potentially protected by executive privilege, Bannon’s lawyer told the committee that “the executive privileges belong to President Trump” and “we must accept his direction and honor his invocation of executive privilege.”
President Joe Biden’s White House has declined to assert executive privilege regarding witnesses and documents related to January 6, citing the extraordinary nature of the attack on the Capitol. The White House counsel’s office has written to Bannon’s attorney to tell him they won’t support his refusals to testify.
In seeking his cooperation, the committee has pointed to reports that Bannon spoke to Trump in the lead-up to the Capitol riot, that he was present at the so-called “war room” of Trump allies at the Willard Hotel in Washington, DC, as the attack was unfolding, and that he made comments on his podcast the day prior predicting that “all hell” was “going to break loose” the next day.
“In short, Mr. Bannon appears to have played a multi-faceted role in the events of January 6th, and the American people are entitled to hear his first-hand testimony regarding his actions,” the House committee said in its report putting forward a contempt resolution against Bannon.
Legal experts also have expressed skepticism about Bannon’s decision not to comply with the subpoena, given that the question of whether Trump as a former President can assert privilege is unsettled, and that Bannon was not working for the government in the period being examined by the committee.
Any criminal case against Bannon could take years to unfold in court, and a successful prosecution isn’t a certainty. Historically, criminal contempt of Congress cases have been derailed by juries sympathetic to the defendants and by appeals rulings. Bannon’s case is likely to raise novel legal questions about executive privilege and about the House’s ability to enforce its investigative subpoenas when they seek information about the executive branch.
The House has pinned its hopes on the prosecution of Bannon as well, with the committee trying to make Bannon an example of the possible consequences for uncooperative witnesses.
“They have obviously got their process. They’ve got to run their traps on all of the guidelines for deciding on a criminal prosecution in a case like that,” Rep. Jamie Raskin, a member of the select committee and a Maryland Democrat, told CNN earlier this month when asked if he believes the Justice Department is dragging its feet on Bannon.
“We think it’s an open-and-shut case,” Raskin added.
“This is an early test of whether our democracy is recovering,” Rep. Adam Schiff, another member of the select committee and California Democrat, said previously on CNN.
This story is breaking and will be updated.