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Three weeks after the House of Representatives voted to hold Steve Bannon in contempt of Congress for refusing to cooperate with a House probe of the Jan. 6 Capitol attack, uncertainty over whether the former Trump adviser will face criminal charges looms large over several new subpoenas issued this week.
Over the course of two days, the House Select Committee investigating Jan. 6 formally requested records and testimony from 16 additional former White House officials, Trump campaign staffers and others with close ties to the former president.
The latest wave of subpoenas came as a federal judge in Washington, D.C., rejected the former president’s attempt to assert executive privilege over records the committee has already requested from other witnesses, including Bannon, related to Trump’s final days in the White House.
The ruling issued Tuesday by U.S. District Court Judge Tanya Chutkan appeared to clear the way for the National Archives to turn over the first batch of sought-after records from the Trump White House — though by Thursday evening, a federal appeals court had agreed to delay their release by granting Trump’s attorneys’ request for a temporary injunction.
Still, the new subpoenas and judge’s ruling suggest the investigation may be closing in on Trump, as it seeks to establish what role the former president and members of his inner circle may have played in the deadly insurrection carried out by a mob of his political supporters as Congress met to certify the results of the 2020 presidential election.
However, looming large over these developments is the fact that the Justice Department has not yet announced whether it will prosecute Bannon for criminal contempt of Congress for defying the committee’s subpoena. Whether or not Bannon faces criminal charges will likely affect the committee’s ability to enforce the rest of its subpoenas, especially as Trump vows to press ahead with his claims of executive privilege.
"If the Justice Department doesn’t hold Steve Bannon accountable, it only lends credence to the idea that some people are above the law and that cannot be true in this country,” Rep. Adam Schiff, D-Calif., a member of the Select Committee, said on CNN this week.
But while some legal analysts and political commentators have urged Attorney General Merrick Garland to act quickly to hold Bannon accountable, other experts caution that such a decision should not be rushed.
“They want to get it right,” said Jonathan David Shaub, a former attorney for the Justice Department’s Office of Legal Counsel. Shaub told Yahoo News that because of the complexities in the Bannon case, a failure to convict would be in many ways the worst possible outcome, signaling to others that there are no consequences for refusing to cooperate.
“If Bannon is criminally prosecuted but it’s unsuccessful, that in some ways sends a stronger message,” Shaub said. “It shows that the Justice Department can’t bring these suits.”
In a recent article co-written with Benjamin Wittes at Lawfare, Shaub elaborated on the complex legal questions the Justice Department must answer before deciding to move forward with criminal enforcement of the congressional subpoena, including whether the former president has the authority to exert executive privilege over information and records requested from Bannon, who hadn’t worked in the White House for years on Jan. 6. If the Justice Department ultimately decides to prosecute Bannon, it must also prove he acted with criminal intent in defying the Select Committee’s subpoena.
In short, Shaub and Wittes conclude: “The desire for haste should be tempered.”
In the meantime, others in Trump’s orbit seem to be testing the waters.
Last week, former Justice Department official Jeffrey Clarke refused to testify to the Select Committee about his involvement in the former president’s efforts to overturn the results of the 2020 election. In a letter to the committee’s chairman, Rep. Bennie Thompson, D-Miss., Clarke’s lawyer explained that his client would not answer the committee’s questions until Trump’s own lawsuit challenging the Jan. 6 investigators ability to access his White House records is settled in court.
In her ruling this week, Chutkan wrote that Trump does not have the authority to overrule current President Joe Biden, who has so far chosen to waive executive privilege over the records sought by the committee. As part of its investigation into Trump’s activities leading up to and during the riot at the Capitol, the Select Committee sent requests to several federal agencies for a variety of documents, including White House call logs, schedules and records of meetings with senior officials and outside advisers.
Even after Chutkan’s rulings against Trump this week, Trump’s former White House chief of staff Mark Meadows indicated that he too will continue to withhold relevant White House records from the Select Committee at his former boss’s request — at least as long as that request is being litigated in court. According to the Washington Post, White House Deputy Counsel Jonathan Su sent a letter Thursday morning to Meadows’s lawyer George Terwilliger III notifying him that President Biden will not assert executive privilege over the documents the House Select Committee subpoenaed Meadows for back in September.
In response, Terwilliger told the Post: “Mr. Meadows remains under the instructions of former President Trump to respect longstanding principles of executive privilege. It now appears the courts will have to resolve this conflict.”
In a letter to Terwilliger received Thursday evening, Thompson, the committee chairman, rejected this rationale and threatened to hold Meadows in contempt of Congress if he continues to resist committee’s subpoena any longer. This, Thompson warned, “could result in a referral from the House of Representatives to the Department of Justice for criminal charges.”