Recent votes in the U.S. House of Representatives have declared Steve Bannon to be contemptuous of Congress. Bannon was given this distinction after refusing to answer a subpoena from Congress to testify before a committee that investigated the circumstances surrounding the Capitol insurrection of January 6.
Congress does not have the authority to bring anyone before a judge for any reason. The Justice Department has the power to prosecute anyone. Prosecution falls under the executive branch. That is why Congress asked the Justice Department to prosecute Bannon for contempt – a crime punishable by a fine and imprisonment.
Two types of contempt are common. You can use civil contempt to. Pressure Refusal to follow a subpoena could result in a criminal conviction. One example is that a person can be imprisoned or fined for refusing to obey a valid subpoena requiring her to provide documents or testify. After she obeys the subpoena the sanctions are removed and her contempt lifted.
It is quite different from criminal contempt. It’s designed to PenaltiesRefusal to comply with subpoenas. Although punishment may be necessary to force compliance in some instances, it’s intended to foster respect for law and warn others about potential violations of the law. Is it better to use coercion than punishment for Bannon Yes.
In all my years working as a federal prosecutor I discovered that most witnesses fell within one of two categories. Some witnesses were willing to testify and had pertinent information. Others did not. The truthful ones and those with relevant information are useful.
There were also witnesses – for many different reasons – who were unwilling to testify. In spite of being unwilling to testify (assuming that they were able to provide relevant information), some witnesses testified honestly when compelled or prodded. That was, of course, ultimately helpful. Untruthful witnesses were useless.
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These categories cover most witnesses. Where is Bannon? We need to think about that to determine which remedy – civil or criminal contempt – makes sense here.
Recall, in August 2020, federal prosecutors in Manhattan indicted Bannon and others for “defraud[ing] hundreds of thousands of donors, capitalizing on their interest in funding a border wall to raise millions of dollars, under the false pretense that all of that money would be spent on construction,” according to a Justice Department press release. As a legal matter, that meant that a grand jury found probable cause to believe that several defendants – including Bannon – committed an egregious fraud. Trump exonerated Bannon before he could face those felony charges.
It makes sense for Justice Department prosecutors to ask whether Bannon – accused of defrauding hundreds of thousands of donors – would tell the truth about the January 6 insurrection. It seems possible that Bannon might not be willing to testify because he has shown disdain for members of the select committee and helped spread misinformation about the election. AndAn untruthful witness. It seems absurd to press Bannon into testifying in such a case.
It is deplorable to let someone get away with a subpoena because they refuse to testify or are not truthful. Accountability is important before Congress as well as in criminal justice. It is expected that citizens will speak up and inform Congress about their knowledge to better understand and prevent similar events from happening again.
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However, some are more interested than others in insurrections or discrediting elections that are valid. A congressional forum might be used by some people not to heal the country, but rather to sow more division. It makes no sense to pursue civil contempt against Bannon in this case to force him to testify. But charging him with criminal contempt – punishing his defiance – sends the right message to him and others.
Do you think the Justice Department will ultimately accuse Bannon of criminal contempt? A prosecution of Bannon for criminal contempt could prove difficult due to Bannon’s reliance on his counsel defense. That defense could center on a claim by Bannon that he refused to comply with the subpoena because an attorney – in good faith – advised him not to do so. The evidence will be reviewed by the prosecution to determine if Bannon can face criminal charges. They should follow the criminal pathway if they have one. Trump cannot be pardoned.