Bannon’s indictment for contempt of Congress swims against the historical tide
Stephen K. Bannon’s indictment on contempt of Congress charges is the nation’s first since 1983, and his appearance in federal court Monday provided a rare glimpse of one of U.S. lawmakers’ politically messiest and least-used powers.
The last successful prosecution on contempt charges reaches all the way back to Watergate and its aftermath, when G. Gordon Liddy was convicted of and Richard Kleindienst pleaded guilty to refusing to answer congressional questions.
Bannon appeared in court Monday to face charges for refusing a House subpoena to tell Congress what he knows about the lead-up to the Jan. 6 U.S. Capitol attack to interrupt certification of Joe Biden’s election victory over then-President Trump.
The last indictment three decades ago was less historic: Rita M. Lavelle, a federal environmental official under President Reagan, failed to heed a House subpoena. Lavelle, who headed the Superfund, would go on to be acquitted of the contempt charge but later was convicted of lying to Congress. She was sentenced to six months in prison and fined $10,000.
Lavelle was a member of the Republican administration while Democrats controlled the House. The Justice Department has been wary of prosecuting such cases when the White House and the House of Representatives are controlled by opposing political parties.
“While the [contempt] law doesn’t differentiate in any way between a Republican or a Democratic president or Congress, it tends to break down along those lines,” said Stan Brand, who served as former House counsel when lawmakers referred the then-chief of the Environmental Protection Agency to the Justice Department for criminal charges.
House investigators have issued subpoenas to 10 more former officials who worked for Trump at the end of his presidency.
Prior to that case, the majority of contempt of Congress cases were in connection with the House Un-American Activities Committee, which was formed in 1938 to investigate individuals and organizations for subversive activities, particularly those related to the Communist Party.
A number of contempt cases from HUAC were eventually overturned because of procedural failures. But its widely publicized hearings beginning in 1947, focusing on the film industry, led to prison sentences for several screenwriters and directors, the so-called Hollywood Ten. They refused to answer questions about their political activities or identify like-minded colleagues, and were jailed for up to a year as well as blacklisted in the industry.
At present, Democrats control the House and White House as lawmakers probe the worst attack on the U.S. Capitol in two centuries, which occurred with Trump at the White House calling for protests.
But even with the current unique circumstances at play, prosecution of these charges relies on a law that hasn’t produced a conviction in decades and could take years to litigate.
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“Historically, if you look at the record of these types of cases in the ‘50s, ’60s, even the late ‘40s, so many of them were thrown out by the courts for technical deficiencies,” Brand said.
“It’s not that these cases are complicated, but they are difficult cases to make,” he added.
When Brand was House counsel in 1982, a subcommittee held then-EPA chief Anne Gorsuch Burford, the mother of current Supreme Court Justice Neil M. Gorsuch, in contempt for her refusal, at Reagan’s direction, to turn over subpoenaed documents about her agency’s efforts to enforce a law requiring the cleanup of hazardous waste dumps. The Justice Department declined to pursue the charges and went on to file a lawsuit to prevent further action on the contempt referral.
The department in the Obama administration declined to prosecute then-Atty. Gen. Eric H. Holder Jr. 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.
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In all, the House has brought five criminal contempt and three civil contempt actions against executive branch officials since 2008. In each instance of a criminal contempt citation, the executive branch declined to refer the charges to a grand jury.
Brand said the hurdle is that the Justice Department has historically not prosecuted executive officials who were instructed by the president to raise executive privilege.
This, he said, is not necessarily the case with Bannon, where the courts will have to define the limits of executive privilege and whether the implied presidential power applies to former White House aides and outside allies of the president.
Bannon, 67, was indicted Friday on two counts of criminal contempt — one for refusing to appear for a congressional deposition and the other for refusing to provide documents in response to the committee’s subpoena.
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His indictment came as a second expected witness, former White House Chief of Staff Mark Meadows, defied his subpoena from the committee Friday and as Trump has escalated his legal battles to withhold documents and testimony about the insurrection.
Bannon did not enter a plea during Monday’s hearing and was released without bail. He is due back in court on Thursday.
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