House Votes on Bannon Thurs   10/21 06:25

   The House is voting Thursday on whether to hold Steve Bannon, a longtime 
ally and aide to former President Donald Trump, in contempt of Congress after 
he defied a subpoena from a committee investigating the violent Jan. 6 Capitol 
insurrection.

   WASHINGTON (AP) -- The House is voting Thursday on whether to hold Steve 
Bannon, a longtime ally and aide to former President Donald Trump, in contempt 
of Congress after he defied a subpoena from a committee investigating the 
violent Jan. 6 Capitol insurrection.

   That committee has vowed to move swiftly and forcefully to punish anyone who 
won't cooperate with the probe. But it's likely up to the Justice Department, 
and the courts, to determine what happens next.

   If the House vote succeeds, as is expected, there's still considerable 
uncertainty about whether the Justice Department will prosecute Bannon, despite 
Democratic demands for action.

   The outcome could determine not only the effectiveness of the House 
investigation but also the strength of Congress' power to call witnesses and 
demand information -- factors that will certainly be weighing on Justice 
officials as they determine whether to move forward. While the department has 
historically been reluctant to use its prosecution power against witnesses 
found in contempt of Congress, the circumstances are exceptional as lawmakers 
investigate the worst attack on the U.S. Capitol in two centuries.

   To emphasize the committee's unity in holding Bannon accountable, the 
panel's Democratic chairman, Mississippi Rep. Bennie Thompson, will lead the 
debate on the bill along with Republican Rep. Liz Cheney of Wyoming, one of two 
Republicans on the committee -- a rare show of bipartisanship on the House 
floor.

   Still, most House Republicans are expected to vote against the contempt 
measure, despite the potential consequences for the institution.

   If Congress can't perform its oversight job, the message sent to "the 
general public is these subpoenas are a joke," said Stephen Saltzburg, a George 
Washington University law professor and former Justice Department official. He 
said if Attorney General Merrick Garland, a former federal judge whom Saltzburg 
regards "as one of the most nonpartisan people I know," doesn't authorize a 
prosecution, "he's going to be letting the Constitution, it seems to me, be 
placed in jeopardy. And it's way too important for him to let that happen."

   Democrats are pressuring Justice to take the case, arguing that nothing less 
than democracy is on the line.

   "The stakes are enormous," said Maryland Rep. Jamie Raskin, a member of the 
panel. "The Congress of the United States under Article One has the power to 
investigate in order to inform our deliberations about how to legislate going 
forward. That's what this is about."

   Still, prosecution is not a given. Assuming his post after a turbulent Trump 
era, Garland has prioritized restoring what he has called "the norms" of the 
department. On his first day, he told rank-and-file prosecutors that they 
should be focused on equal justice and not feel pressure to protect the 
president's allies or to attack his enemies. He has repeatedly said political 
considerations shouldn't play a role in any decisions.

   And his deputies pushed back -- hard -- when President Joe Biden suggested 
to reporters last week that Bannon should be prosecuted for contempt.

   "The Department of Justice will make its own independent decisions in all 
prosecutions based solely on the facts and the law. Period. Full stop," 
Garland's spokesman, Anthony Coley, said Friday, in response to the president's 
comments.

   The Jan. 6 panel voted Tuesday evening to recommend the contempt charges 
against Bannon, citing reports that he spoke with Trump before the 
insurrection, promoted the protests that day and predicted there would be 
unrest. Members said Bannon was alone in completely defying his subpoena, while 
more than a dozen other witnesses were at least speaking to the panel.

   Assuming the full House votes to hold Bannon in contempt Thursday, the 
matter will be referred to the U.S. attorney's office in Washington. It would 
then be up to prosecutors in that office whether to present the case to a grand 
jury for possible criminal charges. The office is run by Channing Phillips, an 
acting U.S. attorney who had previously served in the position in the Obama 
administration. Another attorney, Matt Graves, has been nominated for the post, 
but his nomination is pending in the Senate.

   "If the House of Representatives certifies a criminal contempt citation, the 
Department of Justice, as with all criminal referrals, will evaluate the matter 
based on the facts and the law, consistent with the Principles of Federal 
Prosecution," said Bill Miller, a spokesman for the U.S. attorney's office in 
Washington.

   The Justice Department has in the past been wary of prosecuting 
congressional contempt cases, especially when the White House and the House of 
Representatives are controlled by opposing political parties. During the Obama 
administration the department declined to prosecute then-Attorney General Eric 
Holder and former IRS official Lois Lerner following contempt referrals from 
the Republican-led House. And George W. Bush's Justice Department declined to 
charge Harriet Miers after the former White House counsel defied a subpoena in 
a Democratic investigation into the mass firings of United States attorneys.

   In addition, the Justice Department's Office of Legal Counsel has said in 
multiple opinions -- including one from the 1980s involving Supreme Court 
Justice Neil Gorsuch's mother Anne Gorsuch, who refused to turn over documents 
in her capacity as administrator of the Environmental Protection Agency -- that 
the Justice Department has discretion on when to prosecute for contempt, even 
when receiving a referral from the House.

   Still, the Bannon case is different, as Democrats hold both Congress and the 
White House -- and because the committee is investigating a violent 
insurrection of Trump's supporters who beat law enforcement officers, broke 
into the Capitol and interrupted the certification of Biden's victory.

   "What we're talking about is this massive, violent assault on American 
democracy," Raskin said.

   Even if the department does decide to prosecute, the case could take years 
to play out -- potentially pushing past the 2022 election when Republicans 
could win control of the House and end the investigation.

   And if they don't prosecute, then the House will likely find another route. 
A House-authorized civil lawsuit could also take years but force Bannon and any 
other witnesses to defend themselves in court.

   Another option available to Congress would be to try to imprison defiant 
witnesses -- an unlikely, if not outlandish, scenario. Called "inherent 
contempt," the process was used in the country's early years but hasn't been 
employed in almost a century.