November 12, 2021

This afternoon, a federal grand jury indicted Trump advisor Stephen K. Bannon on two counts of contempt of Congress. Today’s indictment was signed by Matthew M. Graves, the new U.S. Attorney for the District of Columbia, sworn into office just a week ago today.

Bannon was part of the gang at the so-called War Room at the Willard Hotel that apparently helped to plan the events of January 6, and before that date he told his podcast audience repeatedly to expect something huge on January 6 because he and others were planning something extraordinary.

On September 23, 2021, the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol issued a subpoena to Bannon, requiring him both to produce documents and to testify about what he knew about the insurrection.

Bannon ignored the subpoena. After he had missed the deadlines, his lawyer sent a letter to the committee saying that former president Trump’s lawyer had advised them that Trump planned to assert executive privilege over the material, and not to comply with the subpoena. Committee chair Bennie Thompson (D-MS) responded that “the former president has not communicated any such assertion of privilege” to the committee and that Trump’s lawyer’s saying Trump might assert privileges that he might not even have “does not provide a legal basis for Mr. Bannon’s refusal to comply.”

Bannon assured the committee that he would not comply until they worked out the issue of executive privilege with Trump.

The idea that Bannon might be covered by executive privilege—even though Trump has not asserted it in his case—is a stretch. Bannon left the White House in 2017 after only seven months, and at the time of the insurrection almost four years later was working as a podcaster on his show, titled “War Room.” Executive privilege is designed to permit the president to get honest and wide-ranging advice from official advisors.

Further, executive privilege goes with the office, not the person filling it, so the current president is the one who determines whether the office will invoke executive privilege. So far as I know, Trump has actually asserted executive privilege only over the documents the committee has requested from the National Archives and Records Administration (NARA), and the Biden administration has declined to support his assertion.

On Tuesday, U.S. District Court Judge Tanya S. Chutkan rejected Trump’s right to invoke executive privilege over those documents, pointing out that it’s Biden, not a former president, who gets to decide, and Biden has said he doesn’t want to ask for it over that material.

Trump immediately appealed, and last night a three-judge panel on the U.S. Court of Appeals temporarily blocked the committee from getting the records. It will hear arguments on November 30. But it doesn’t look good for Trump on that issue, so the idea that he can successfully claim executive privilege for conversations with someone outside the administration is questionable.

Bannon is facing a fine of up to $1000 and a year in jail on each count. But a conviction will not mean he will be forced to testify before the committee.

This indictment’s significance may well lie less in getting Bannon to cooperate than in warning others what is at stake if they do not. Trump’s former chief of staff, Mark Meadows, has been defying a subpoena with statements similar to Bannon’s, and the committee has run out of patience, tweeting: “Mr. Meadows has failed to answer even the most basic questions, including whether he was using a private cell phone to communicate on January 6th, and where his text messages from that day are.”

The committee told him to appear at 10:00 this morning and warned that if he did not, he could face contempt of Congress charges. He did not, and after Bannon’s indictment, the committee’s account tweeted: “Steve Bannon’s indictment should send a clear message to anyone who thinks they can ignore the Select Committee or try to stonewall our investigation: no one is above the law…. We will not hesitate to use the tools at our disposal to get the information we need.”

Also in the hot seat is Jeffrey Clark, the Department of Justice attorney who tried to rise to the position of attorney general by backing Trump’s false claims that the 2020 election was stolen. After receiving a subpoena, Clark actually showed up for his hearing but then refused to speak.

And from late November through mid-December, the committee has scheduled depositions with key members of former vice president Mike Pence’s inner circle and Trump’s White House loyalists. Legal analyst and long-time prosecutor Joyce White Vance points out, “You always put the folks you’re most interested in at the end so you can learn as much information about them as possible before you speak to them.”

The November depositions indeed have the potential to provide important information before the December depositions. Those later ones are from Trump press secretary Kayleigh McEnany; Trump advisor Michael Flynn; Trump’s bodyguard Nicholas Luna; Trump legal team member John Eastman, author of the memo for overturning the election; Trump advisor Jason Miller; Trump’s 2020 campaign director Bill Stepien; advisor Stephen Miller; and John McEntee, who was responsible for stacking the White House with fervent loyalists.

It will be hard for these many witnesses to maintain a solid front against the committee now that a lack of cooperation has teeth. Those testifying will likely be interested in doing what’s best for themselves.

There is another possible significance to Bannon’s indictment, as well. If Bannon is convicted and goes to jail, he will not be able to record his podcast, which will mean he cannot keep whipping up Trump’s followers.

The other big news today suggests that would be a good thing. In an interview with the former president recorded on March 18 by ABC News reporter Jonathan Karl, Trump continued to blame Pence for the events of January 6 and defended those calling for his vice president to be hanged. In the interview tapes, shared with Axios, Trump also said that he didn’t worry about Pence because “I had heard he was in very good shape.” This raises the question of who he was talking to at the Capitol building during the insurrection.

In a statement about Bannon’s indictment, Attorney General Merrick Garland said: “Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law.” He added, “Today’s charges reflect the department’s steadfast commitment to these principles.”

Notes:

https://www.washingtonpost.com/politics/january-6-thompson-bannon/2021/10/18/89169018-2fc2-11ec-9241-aad8e48f01ff_story.html

https://www.justice.gov/opa/press-release/file/1447811/download

https://www.justice.gov/opa/pr/stephen-k-bannon-indicted-contempt-congress

https://www.npr.org/2021/11/06/1053051380/jan-6-panel-former-doj-official-jeffrey-clark-fails-to-cooperate-in-testimony

https://www.businessinsider.com/trump-january-6-committee-investigation-lawyer-letter-comply-bannon-meadows-2021-10

https://www.justice.gov/opa/pr/stephen-k-bannon-indicted-contempt-congress

https://www.axios.com/trump-hang-mike-pence-january-6-audio-4f147245-becf-4766-ac60-7acece6862be.html

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