October 18, 2021

Today, the House Select Committee to Investigate the January 6th Attack on the United States Capitol recommended that the House of Representatives find Trump adviser Stephen K. Bannon in contempt of Congress. Bannon is refusing to cooperate with a subpoena for documents and testimony about the events surrounding the January 6 insurrection. Now the House will take up the question of contempt.

The committee report is a lot more interesting than that topline suggests (political historian here: although people tend to watch what happens before the TV cameras, committee reports are often where the action is).

The report starts by stating that the attempt of “a violent mob” to “halt the lawful counting of electoral votes and reverse the results of the 2020 election” was, according to “the words of many of those who participated in the violence, ...a direct response to false statements by then-President Donald J. Trump—beginning on election night 2020 and continuing through January 6, 2021—that the 2020 election had been stolen by corrupted voting machines, widespread fraud, and otherwise.”

The committee is laying the events of January 6 on Trump.

Congress established the committee, the report says, “to identify how the events of January 6th were planned, what actions and statements motivated and contributed to the attack on the Capitol, how the violent riot that day was coordinated with a political and public relations strategy to reverse the election outcome, and why Capitol security was insufficient to address what occurred.”

The committee is saying that the riot was coordinated ahead of time, and it appears to suggest that Capitol security was compromised.

Then the report explains why Bannon is an important witness. Its account of his actions in that crisis is an illuminating roundup of what we have seen in pieces in many other places. It concludes that Bannon knew specifically about the events of January 6 ahead of time.

On his January 5 podcasts, for example, he said:

“It’s not going to happen like you think it’s going to happen. OK, it’s going to be quite extraordinarily different. All I can say is, strap in. [. . .] You made this happen and tomorrow it’s game day. So strap in. Let’s get ready.”

“All hell is going to break loose tomorrow. [. . .] So many people said, ‘Man, if I was in a revolution, I would be in Washington.’ Well, this is your time in history.”

Bannon said that the country was facing a ‘‘constitutional crisis’’ and ‘‘that crisis is about to go up about five orders of magnitude tomorrow.’’

And: “It’s all converging, and now we’re on the point of attack tomorrow.”

So, the committee report suggests there was high-level planning for the January 6 insurrection. And it goes on:

The report says that it appears Bannon joined others eager to overturn the election “who gathered at the Willard Hotel, two blocks from the White House, on the days surrounding the January 6th attack…. The group that assembled at the Willard Hotel is reported to have included members of the Trump campaign’s legal team (including Rudolph Giuliani and John Eastman), several prominent proponents of false election fraud claims that had been promoted by Mr. Trump (e.g., Russell Ramsland, Jr. and Boris Epshteyn), as well as Roger Stone, who left the hotel with Oath Keeper bodyguards, and campaign spokesman Jason Miller.”

Then the report blows up the idea that Bannon had an excuse not to testify.

Bannon refused to honor the subpoena because he claimed that Trump was going to invoke executive privilege, but “Trump has had no communication with the Select Committee.” “This third-hand, non-specific assertion of privilege, without any description of the documents or testimony over which privilege is claimed, is insufficient to activate a claim of executive privilege,” it says. In any case, as a private citizen at the time of the events in question, Bannon would not be covered by executive privilege anyway.

This is a powerful document, laying out the direction the committee report is likely to go.

Today, former president Donald Trump did, in fact, invoke executive privilege…but not to cover Bannon.

He sued Representative Bennie G. Thompson (D-MS), the chair of the House Select Committee; the committee itself; the national archivist, David S. Ferriero; and the National Archives and Records Administration (NARA) to try to prevent the National Archives from releasing records from the January 6 insurrection to the House committee investigating it.

The suit alleges that the investigation is a “fishing expedition” designed “to harass President Trump and senior members of his administration (among others) by sending an illegal, unfounded, and overbroad records request to the Archivist of the United States.” It relies on executive privilege and the argument that there is no legitimate legislative reason for Congress to have access to the records it wants to see.

There are some oddities in this lawsuit. First off, executive privilege covers current presidents, not past ones, and President Biden has waived the privilege for these documents, saying it would not be “in the best interests of the United States.” White House counsel Dana Remus wrote: “These are unique and extraordinary circumstances. Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President's constitutional responsibilities.” So a former president is asking a court to overrule a current president.

Second, the lawsuit covers only the material at NARA and none of the other requests the committee has made. This is for the obvious reason that executive privilege can’t cover things outside the scope of official business—which is archived at NARA—but since there is almost certainly a great deal of overlap in the material requested from different parties, this lawsuit seems likely to be designed not to hide evidence so much as to gum up the works. If the committee can be held at bay until after the 2022 election, a Republican victory might end its investigation.

Third, the lawyer bringing the lawsuit is Jesse R. Binnall, a Trump loyalist associated with Trump’s former lawyer Sidney Powell, who is currently being sued for $1.3 billion by the voting technology company she accused of stealing the 2020 election. Binnall is not a top-of-the-line attorney.

In response to the lawsuit, committee chair Thompson and Vice Chair Representative Liz Cheney (R-WY) issued a statement noting that “the former President’s clear objective”—Trump’s supporters never use the word “former” to refer to him—“is to stop the Select Committee from getting to the facts about January 6th and his lawsuit is nothing more than an attempt to delay and obstruct our probe…. It’s hard to imagine a more compelling public interest than trying to get answers about an attack on our democracy and an attempt to overturn the results of an election.”

“The Select Committee’s authority to seek these records is clear. We’ll fight the former President’s attempt to obstruct our investigation while we continue to push ahead successfully with our probe on a number of other fronts.”

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Notes:

https://www.cnn.com/2021/10/18/politics/read-trump-wh-lawsuit/index.html

https://abcnews.go.com/Politics/trump-sues-block-release-jan-documents-select-committee/story?id=80651849

https://january6th.house.gov/news/press-releases/thompson-cheney-statement-former-president-s-lawsuit

https://docs.house.gov/meetings/IJ/IJ00/20211019/114156/HRPT-117-NA.pdf