Steve Bannon’s rejection of Jan. 6 committee subpoena puts Biden’s DoJ to the test

After former top Trump political adviser Steve Bannon announced he will ignore a subpoena from the House select committee investigating the Jan. 6 riot, his decision puts President Joe Biden’s Justice Department on the spot as to whether officials will move to assist the Democrat-controlled panel with enforcing its authority.

The committee has indicated that it could refer Bannon to the DOJ for prosecution if he does not appear for a deposition outlined in the subpoena that is scheduled for Thursday, but if so, it puts Attorney General Merrick Garland in the position of taking action against a man who was, at one time, one of former President Donald Trump’s most trusted aides.

“That’s going to be something that will be considered at the highest levels at DOJ, and what they’re going to consider with any referral like that is how strong of a case is it, and even if it’s readily provable — how important is it that we do this?” Mark Osler, a former federal prosecutor and a current professor of law at the University of St. Thomas, told The Hill.

Under U.S. law, Congress has the authority to refer someone to the Justice Department for criminal prosecution if they ignore a subpoena, but prosecutions for the offense have not been common. Also, Congress could instruct the Sergeant-at-Arms to arrest Bannon or anyone else who ignores the subpoena, but that, too, has not occurred in modern times. Finally, the panel could seek a federal court order for Bannon to appear.

As for Bannon, he has said through his attorneys that he will await the outcome of a separate federal case filed by his former presidential boss to determine if he can rely on executive privilege to prevent his former administration staffers from testifying before the Jan. 6 committee, The Hill noted.

“We will comply with the direction of the courts,” Robert Costello, Bannon’s attorney, wrote in a letter.

The outlet noted that some legal experts don’t believe Trump will get far with his executive privilege claims since they normally apply only to sitting presidents.

Others believe it will be important for Biden’s DOJ to respond to the Democratic panel’s requests, should one be forthcoming.

“There are a number of things prosecutors have to think about. One is, what is the deterrent effect of bringing a case here in light of the history of the Trump administration, allies, and others thumbing their noses at congressional subpoenas and stalling? There’s a compelling case here for bringing criminal charges,” Barbara McQuade, who was a U.S. attorney during the Obama administration, told The Hill.

Some Democrats said they don’t think that President Biden, as head of the Executive Branch and, therefore, the Justice Department, will attempt to influence any decision regarding charging Bannon with criminal contempt of Congress.

“I think the White House is going to go to extreme lengths to not have any influence on this,” Steve Cash, a lawyer at the firm Day Pitney and former chief counsel to Sen. Dianne Feinstein (D-Calif.), told The Hill.

But some congressional Democrats appear to be pushing for the White House to intervene.

“We may have additional tools now that we didn’t before, including a Justice Department that may be willing to pursue criminal contempt when people deliberately flout compulsory process,” Rep. Adam Schiff, chairman of the House Intelligence Committee, told the outlet.

In addition to Bannon, White House chief of staff Mark Meadows, and Kash Patel, a Defense Department aide, have been issued subpoenas as well. It’s unclear if they plan to comply.

According to CNN, the panel has yet to physically issue a subpoena to former Trump aide Dan Scavino.

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Jon Dougherty

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