Prosecuting Steve Bannon Is an Easy Call

Prosecuting Steve Bannon Is an Easy Call

The former Trump aide is clearly acting in contempt. If he avoids testifying, Congress will be permanently weaker.

The clock is ticking.

The clock is ticking.

Photographer: Jeenah Moon/Bloomberg

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The House of Representatives last week voted to hold Steve Bannon, the former aide to President Donald Trump, in contempt of Congress for ignoring a subpoena from the Jan. 6 select committee. The next step is up to the Justice Department, and it’s an easy case — as CNN’s Elie Honig says, Attorney General Merrick Garland “really shouldn’t take more than a week or so to make the call on charging Bannon. Everyone needs to move past this culture of delay and slow-play.”

The clock is ticking.

Whatever one thinks about the rest of the Jan. 6 investigation, this is an incredibly easy question — and it’s essential to Congress and the presidency that the Justice Department and the courts get this right. Unlike previous such disputes, in which were are serious competing claims, this one is straightforward. Presidents, for example, have claimed that they’re entitled to protect conversations with their top advisers from congressional prying. But here, we’re not only talking about a former president, we’re talking about someone who was a private citizen at the time. And the evidence that Congress is seeking has nothing to do with advising the president about public policy; it’s about organizing a political rally at best, and an attempted overthrow of the government at worst. The nation will survive just fine if private citizens discussing such things with presidents are aware that they could be hauled before Congress and asked about them. 

Nor is there any question that this is a legitimate topic for congressional investigation. There’s a doctrine that Congress must have some legislative purpose for its investigations. Whether that’s a proper interpretation of Congress’s role or not, this again is an easy call. Of course Congress can write election law, including about the Electoral College. Of course Congress can write laws concerning its own safety. If Bannon’s assertion is allowed to stand, it’s hard to imagine any legitimate congressional investigation of any president. Congress would be permanently weaker; presidents would be closer than ever to being above the law.

Oh, and one more thing. Typically in inter-branch battles, Congress asks for something, the president asserts privilege and then they negotiate. (And, yes, it’s not clear this is really an inter-branch battle given that Bannon was and is a private citizen and Trump is now one as well, but put that aside for now.) In those circumstances, both prosecutors and the courts might simply want to push the parties to resolve their differences. But Bannon is acting here … well, he is acting in contempt of Congress.

So prosecutors should act, and they should act quickly to prevent Bannon from simply running out the clock until, perhaps, Republicans take the House after the 2022 elections. Besides, there’s some urgency in getting to the truth sooner rather than later, especially since news reports indicate that some sitting members of the House may have been involved in improper actions themselves. But again, you don’t have to believe that those officials did anything wrong on Jan. 6 to think this is an easy call.

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