The House committee investigating the Capitol riot rejected a request from Steve Bannon’s lawyer to delay a contempt vote for a week to “thoughtfully assess the impact” of sanctioning him for defying a House subpoena, The Hill reported on Tuesday, October 19, 2021.
The request appears tied to a lawsuit just filed by Trump to enforce executive privilege for records sought by the committee. The current president has waived privilege with respect to those documents, which are held by the National Archives, and legal experts say Trump can’t assert privilege as a former president.
But Trump’s filing didn’t prompt Bannon’s defiance. “Even before Trump formally filed the suit, Bannon had said he would not comply with the committee’s subpoena until the former president’s executive privilege case was addressed by the courts,” The Hill said.
A court battle over access to those records might take years. The committee isn’t willing to wait. Rep. Bennie Thompson (D-MI), who chairs the committee, called its investigation “urgent for the nation.”
Read story here.
Congressional subpoenas are different from judicial subpoenas. A judge can hold a witness in contempt and jail him until he complies with the subpoena. Congress doesn’t have that power, and has to refer non-compliance to federal prosecutors, in effect calling on the courts to enforce its subpoenas.
That leaves it up to a judge whether to require a witness to comply with a congressional subpoena, or quash it, and Congress’ demand for testimony and/or records ends up getting litigated in a full-blown trial. Presumably, the issue of executive privilege could be raised in such a trial, and the judge would ultimately decide whether it could be asserted in that specific case.
The purpose of executive privilege is to enable the president to receive candid advice by protecting his internal discussions and memos from public disclosure. The theory is such disclosure would have a chilling effect on the internal debates preceding presidential decision-making. There’s a serious issue here, because it’s obvious that even if the sitting president can assert privilege, knowing that a future successor of a different party could override the privilege and release the information for partisan purposes would have a present chilling effect. (See CNN article here, and Vox article here, for a more detailed discussion.)
This issue also involves checks and balances between Congress and the executive, who are often at odds, and implicates Congress’ oversight function over the executive branch. One argument would go, how can Congress act as a check on the executive if it can’t investigate? The answer lies in drawing a fine line between what Congress should be able to get, and what records, testimony, and information should be off limits. And it seems obvious that the courts, not the disputants, should ultimately decide which side of the line a specific request falls on.
At stake in this case is what Trump’s and Bannon’s involvement in the January 6 insurrection was. Congress wants to know. So do the American people. The question is whether Trump and Bannon are entitled to keep it secret. The larger question is whether, if they’re not, Bannon will be allowed to get away with defying a valid congressional subpoena, or whether the House’s powers and the rule of law remain intact. For the outcome of that, stay tuned.