Not surprisingly, Democrats on the Jan. 6 committee are already anticipating Bannon’s defiance and beginning to lobby for the backing they’ll need from Garland’s Justice Department to pressure Bannon should they make a criminal referral.
“We are prepared to go forward and urge the Justice Department to criminally prosecute anyone who does not do their lawful duty,” said Rep. Adam Schiff of California, a member of the panel, Sunday on CBS. Schiff’s comments follow a joint statement Friday from Reps. Bennie Thompson and Liz Cheney, the chair and vice-chair of the committee, promising to “swiftly consider advancing a criminal contempt of Congress referral” for anyone who defies their subpoenas.
On Tuesday morning, Rep. Jamie Raskin of Maryland, another Jan. 6 panel member, restated the obvious: “The law applies to everybody, including former presidents and including friends of former presidents who are facilitating the incitement of violent insurrection against the union.”
Bannon, in particular, is making a laughable executive privilege claim, despite the fact that Donald Trump is no longer in office and that Bannon wasn’t even a White House official at the time of the Jan. 6 insurrection. In fact, Bannon hadn’t worked at the White House since 2017 and is the only one of the four subpoenaed Trump aides who wasn’t working for the administration during the Capitol siege. The other aides defying subpoenas thus far include former White House chief of staff Mark Meadows and former Pentagon aide Kash Patel. Former White House communications aide Dan Scavino wasn’t subpoenaed until Friday, and it remains unclear how he plans to respond.
Bannon’s attorney claimed in a letter to the Jan. 6 panel that the executive privileges “belong to Trump.” They don’t really. Even if Bannon had been an administration official at the time of the coup attempt—which he wasn’t—the power to claim executive privilege would belong to the sitting president, Joe Biden, and he’s waived that power.
But facts are beside the point. “We will comply with the directions of the courts, when and if they rule on these claims of both executive and attorney-client privileges,” wrote Bannon attorney Robert Costello.
But the question here isn’t the law—it’s whether the Justice Department is willing to fully leverage its power on behalf of justice and saving U.S. democracy. And whatever Attorney General Garland decides to do in the case of Bannon will set the tone for how other Trump advisers choose to respond to Jan. 6 panel subpoenas moving forward.
“There are a number of things prosecutors have to think about,” former U.S. Attorney Barbara McQuade told The Hill. “One is, what is the deterrent effect of bringing a case here in light of the history of the Trump administration, allies and others thumbing their noses at congressional subpoenas and stalling? There’s a compelling case here for bringing criminal charges,” she said.
Unfortunately, as McQuade notes, Garland hasn’t proven particularly aggressive in areas concerning the separation of powers since he took over at the Department of Justice.
“So I don’t know that he’s going to be terribly aggressive here,” McQuade.
For the sake of our democracy, let’s hope McQuade’s crystal ball is on the fritz. History is calling, Attorney General Garland, and the time to answer that call is now.