While lawmakers prepare to vote on Thursday to refer a contempt case to the U.S. Attorney's Office in Washington, there is uncertainty over whether Bannon will be prosecuted by the Justice Department for not cooperating with the investigation into Jan. 6's insurrection despite Democratic demands.
The House investigation's effectiveness and the power of Congress to call witnesses and request information will be determined by the outcome. Justice officials will likely weigh these factors as they decide whether or not to proceed. Although the department has been reluctant to prosecute witnesses who are found in contempt with Congress in the past, these circumstances are extraordinary as lawmakers investigate the worst attack against the U.S. Capitol since two centuries.
Stephen Saltzburg, a former Justice Department official and professor at George Washington University, said that Congress cannot perform its oversight function. Saltzburg stated that if Attorney General Merrick Galrland, a former federal Judge whom Saltzburg considers "one of the most neutral people I know", doesn't authorize a prosecute, "he's going be letting the Constitution be put in jeopardy, it seems to me." It's too crucial for him to allow that to happen.
The Democrats want Justice to hear the case and argue that democracy is at risk.
Jamie Raskin (Maryland Rep.), a member on the panel, said that "the stakes are immense." "The Congress of the United States has the power under Article One to investigate to help inform our decisions about how to legislate moving forward. This is what this is all about.
However, prosecution is not an automatic right. After a Trump-era of turmoil, Garland took over his position and has made it a priority to restore what he calls "the norms" at the department. Garland told his rank-and-file colleagues that they should focus on equal justice, not being under pressure to defend the president or attack his enemies. He repeatedly stated that political considerations should not be considered in any decision.
His deputies were sternly opposed by President Joe Biden's suggestion last week to reporters that Bannon be charged with contempt.
"The Department of Justice will take its own independent decisions regarding all criminal prosecutions, based on only the facts and the law. It is that simple. Period. While members claimed that Bannon alone defied his subpoenas, more than a dozen witnesses were at the least speaking to them.
If the House votes to hold Bannon responsible for his conduct on Thursday, it will refer the matter to the U.S. Attorney's Office in Washington. The case would then be decided by the prosecutors at that office if it is presented to a grand jury for criminal charges. Channing Phillips is the acting U.S. Attorney who previously held the same position in the Obama administration. Matt Graves has also been nominated, but his nomination remains pending in Senate.
"If the House of Representatives certifies that a criminal contemptcitation has been issued, the Department of Justice will, as with all criminal referrals in this area, evaluate the matter on the basis of the facts and law consistent with the Principles of Federal Prosecution," stated Bill Miller, a spokesperson for the U.S. Attorney's office in Washington.
Following contempt referrals from Republican-led Houses, the Obama administration's department declined to prosecute Eric Holder and Lois Lerner. George W. Bush's Justice Department declined Harriet Miers charges after Harriet Miers, former White House counsel, defied subpoenas in a Democratic investigation into mass firings of United States lawyers.
Additionally, the Office of Legal Counsel of the Justice Department stated in multiple opinions, including one in the 1980s that Anne Gorsuch was the mother of Supreme Court Justice Neil Gorsuch and refused to hand over documents as she served as administrator of Environmental Protection Agency, that the Justice Department can decide when to pursue contempt cases, even if it is referred by the House.
The Bannon case is still different because Democrats hold both Congress as well as the White House. Additionally, the committee is investigating a violent rebellion of Trump supporters, who beat law enforcement officers and broke into the Capitol, interfering with the certification of Biden’s victory.
Raskin stated that "what we're referring to is this massive, violent attack on American democracy."
Thomas Spulak is a former Democratic Counsel to the House and said that there were arguments for and against a Justice Department investigation. He said that on the one hand, some have suggested that the Justice Department might not want to be involved in a continuation of the saga over subpoenas for the House.
However, Jan. 6's historic severity and importance means that "this is a significant matter for this House" and the House will press the House very hard for its attention. It might prove difficult for the administration not to act.
Even if the Department decides to prosecute, it could take many years for the case to be resolved -- possibly pushing beyond the 2022 election when Republicans might win control of Congress and end the investigation.
If they do not prosecute, the House will most likely find another route. Although a House-authorized civil suit could take many years, it will force Bannon and all other witnesses to defend themselves in court.
Congress also has the option to try to indict witnesses who obstruct them, which is a rare, if not outrageous, possibility. This process is known as "inherent contempt" and was used in the country’s early years, but it hasn’t been used since almost a century.
Adam Schiff, Chairman of the House Intelligence Committee, said that Justice would have a "vigorous effect" on other potential witnesses' willingness or consequences to cooperate if it prosecuted the case.
Schiff stated, "I believe the criminal justice system can move very quickly, when it has a will to," "And we believe it will," Schiff said.