This report is the subject of a Tuesday business meeting to be held by the committee, which marks the first step in a series of moves that needs to be taken in order to move forward with holding Bannon in criminal contempt for not complying with the subpoena.
The criminal contempt report lays out all the correspondence between the committee and Bannon, revealing new details about what happened the day of his scheduled deposition and making his full subpoena publicly available for the first time.
Throughout the report, the committee makes the case for why Bannon’s claim of executive privilege does not hold up and lays out the legal argument for why he must comply with the subpoena.
“Mr. Bannon has relied on no legal authority to support his refusal to comply in any fashion with the subpoena,” the report states.
The committee starts out by noting that executive privilege has not been officially invoked, and that there has been no communication with Trump over its invocation.
“The Select Committee has not been provided with any formal invocation of executive privilege by the President, the former President or any other employee of the executive branch,” the report says.
The committee also argues that Bannon was a private citizen during the period in which it is seeking information. “The law is clear,” the report states, “that executive privilege does not extend to discussions between the President and private citizens relating to non-governmental business or among private citizens.”
The report adds that “at no point during the time period under investigation by the Select Committee was Mr. Bannon a government employee, much less a key White House adviser in the Office of the President.”
The committee also argues that much of what it is seeking from Bannon does not involve his conversations with Trump and therefore should not be shielded.
Subpoena released in full
The report provides a detailed accounting of the select committee’s requests for documents and communications dating to April 1, 2020.
The subpoena lists 17 key areas of investigation and specifically directs Bannon to produce any permits and documents related to planning, financing, objectives and communications for the pro-Trump January 6 rally on the National Mall and Capitol complex grounds.
The requested documents include correspondence with former Trump aide Boris Epshteyn; copies of his podcasts in which he discusses false claims of election fraud or the rally; communications with Trump regarding January 6 and — more specifically — communications the two may have had on December 30; and communications with key Trump allies such as John Eastman, Jenna Ellis, Michael Flynn, Sidney Powell and Rudy Giuliani.
The committee asks Bannon to provide any communications with far-right extremist groups the Proud Boys, the Oath Keepers and Three Percenters, as well as InfoWars creator Alex Jones.
On October 7, seven hours after Bannon was to provide documents to the committee, the report outlines that Bannon’s lawyer, Robert J. Costello, sent a letter to the committee explaining that his client refused to comply with the committee’s subpoena. Costello cited a letter from Trump’s counsel, Justin Clark, that instructed Bannon to not comply with the subpoena until a deal on executive privilege had been worked out.
“The two-page letter contained only conclusory statements, no legal analysis, and approximately half of it purported to quote from the letter of October 6, 2021, from the counsel to Mr. Trump,” the contempt report states.
On October 13, the report outlines that committee staff reached out to Costello via email to discuss logistics for Bannon’s deposition the following day. An hour later, staff and Costello spoke by phone and Costello informed the committee — ahead of the letter that was publicly released — that his client would not be appearing for a deposition.
Costello’s letter to the panel stated that his client will not provide testimony or documents until the committee reaches an agreement with Trump over executive privilege or a court weighs in on the matter.
The report addresses the letter, saying: “Mr. Costello’s October 13th letter merely states that the attorney for former President Trump had informed him that ‘President Trump is exercising his executive privilege.’ This third-hand, non-specific assertion of privilege, without any description of the documents or testimony over which privilege is claimed, is insufficient to activate a claim of executive privilege.”
On October 14, the day of Bannon’s scheduled deposition, committee staff and members including Rep. Adam Schiff and Senior Investigative Counsel Sean Tonolli, gathered at 10 a.m. and adjourned six minutes later when it was clear that Bannon was not going to appear. The report includes a transcript of that short meeting, during which Tonolli recaps what the correspondence with Bannon had been up until that point.
On October 15, according to the report, committee chairman Bennie Thompson sent a letter to Costello informing him that the committee planned to move forward with a criminal contempt referral, that Bannon does not have immunity from testifying and that Bannon had not attempted to provide any explanation for his refusal to provide documents unrelated to his communications with Trump.
If the report is adopted out of committee on Tuesday, it is then referred to the House. If the vote succeeds, House Speaker Nancy Pelosi certifies the report to the United States attorney for the District of Columbia. Under law, this certification then requires the United States attorney to “bring the matter before the grand jury for its action,” but the Justice Department will also makes its own determinations for prosecuting.
Any individual who is found liable for contempt of Congress is then guilty of a crime that may result in a fine and between one and 12 months imprisonment. But this process is rarely invoked and rarely leads to jail time.
As severe as a criminal contempt referral sounds, the House’s choice to use the Justice Department may be more of a warning shot than a solution. Holding Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
Democratic Rep. Elaine Luria of Virginia, who is one of the lawmakers serving on the committee, outlined that the ultimate goal of pursuing criminal contempt with Bannon is to get him to testify.
“Our goal is to have him testify. I think that this will send a strong message that there are consequences for not testifying,” Luria told CNN on Friday. “His testimony is very important for the committee.”
Last week, Thompson detailed the panel’s intent to pursue criminal contempt of Bannon.
“Mr. Bannon has declined to cooperate with the Select Committee and is instead hiding behind the former President’s insufficient, blanket, and vague statements regarding privileges he has purported to invoke,” the Mississippi Democrat said in a statement on Thursday.
This story has been updated with additional details from the report.