The measure is expected to move to a floor vote without any opposition from the committee members and marks a critical milestone in the investigation as the panel hopes even the remote threat of jail time inspires more Trump-aligned witnesses to cooperate.
In Tuesday’s meeting, the committee will adopt a contempt report, which was released Monday night and outlines the efforts the committee made to get a witness to comply with the subpoena, and the failure by the witness to do so.
This report is then referred to the House for a vote. 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 make its own determinations for prosecution.
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 historically, criminal contempt cases have been derailed by appeals and acquittals.
The committee sent a letter to Bannon on Friday rejecting his argument for failing to comply with its subpoena and dismissing his claim of executive privilege, particularly as it relates to his communications with individuals other than Trump, according to a copy obtained by CNN.
Bannon has previously argued that he is unable to cooperate with the committee until matters of executive privilege are resolved by the courts, but Friday’s response makes clear the panel believes his “willful refusal to comply with the Subpoena constitutes a violation of federal law.”
“As was explained in the Select Committee’s October 8, 2021 letter … the former President has not communicated any such assertion of privilege, whether formally or informally, to the Select Committee. Moreover, we believe that any such assertion of privilege — should it be made by the former President — will not prevent the Select Committee from lawfully obtaining the information it seeks,” the letter says.
And even if the committee was “inclined to accept the unsupported premise” that executive privilege reaches communications between Bannon and Trump, the letter notes that Bannon “does not enjoy any form of absolute immunity from testifying or producing documents in response to a Congressional subpoena.”
CNN has reached out to Bannon’s attorney for comment. The letter was first reported by The Washington Post.
Bannon’s lawyer Robert Costello wrote to the committee on the night before Bannon was scheduled to appear for a private deposition, claiming the committee accusing his client of defiance was “inappropriate.”
Costello said that Bannon was not ignoring the committee’s request but was instead following Trump’s instruction in his efforts defend executive privilege. Costello also wrote that Bannon would not cooperate with the committee until an agreement was reached between the committee and Trump in regard to his privilege claims.
“Until such time as you reach an agreement with President Trump or receive a court ruling as to the extent, scope and applications of the executive privilege, in order to preserve the claim of executive and other privileges, Mr. Bannon will not be producing documents or testifying,” the letter read.
One day later, the committee officially announced its decision to move forward with criminal contempt for Bannon — an effort that begins with Tuesday’s business meeting and vote.
In a letter obtained by CNN on Monday, White House Deputy Counsel to the President, Jonathan Su, told Costello that the Biden administration will not support any attempt by Bannon to refuse to cooperate with the committee on the grounds of executive privilege.
Su informed Costello that Biden has determined that any of Bannon’s interactions with anyone in the White House, after he left the Trump administration, are fair game for the committee’s investigation.
“As you are aware, Mr Bannon’s tenure as a White House employee ended in 2017,” Su writes. “To the extent any privileges could apply to Mr Bannon his conversations with the former president or White House staff after the conclusion of his tenure, President Biden has already determined that an assertion of executive privilege is not in the public interest, and therefore is not justified with respect to certain subjects within the purview of the Select Committee.”