House committee investigating January 6 riot must summon Steve Bannon

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The House special committee investigating the January 6 attack on the U.S. Capitol has issued subpoenas seeking testimony and documents from four Trump administration officials: former presidential adviser Steve Bannon, l former Chief of Staff Mark Meadows, former Deputy Chief of Staff Dan Scavino and former Pentagon official Kash Patel.

During Donald Trump’s time as president, subpoenas from Congress appeared to have been viewed by executive officials as something akin to party invitations.

The committee sent letters to the four men clearly stating that each had information “relevant to understanding the important activities that led to and informed the events on Capitol Hill on January 6, 2021, and relevant to the former president’s activities and communications. Trump in the lead-up to and on January 6. These subpoenas will likely spark a chain of events that will say a lot about the pace and direction of the committee’s investigation, but also the future health of our democracy. .

During Donald Trump’s time as president, subpoenas from Congress seemed to have been viewed by executive officials as something akin to party invitations that could be accepted or rejected with little. or no consequence. When subpoenas recipients were not entirely unaware of the subpoenas legally issued by Congress, they challenged the subpoenas to appear in court, making unsubstantiated claims of non-existent privileges and immunities and arming the delay. integrated into the judicial system in order to use up the allotted time. Former White House lawyer Don McGahn fought a congressional subpoena for more than two years and ultimately won the war of attrition.

With this new round of subpoenas to Congress, we will now see if Congress and the courts have learned anything from that time, or if they will again let witnesses ignore their subpoenas or exploit court delays in an attempt to fail. time.

Here are some of the issues that will arise as a result of these four subpoenas.

Some people may claim executive privilege in an attempt to defeat the subpoena. Indeed, Trump has previously threatened to invoke executive privilege to block subpoenas from the select committee. Unfortunately for Trump, Biden, and not a former president, makes the ultimate decisions on matters of executive privilege.

Second, executive privilege does not apply to anyone who was a private citizen while speaking with the President. Bannon was a private citizen around January 6, a second reason why a request for executive privilege to block his testimony will fail.

Third, although it has not been directly tested by the courts, there is a strong argument that whether the evidence or testimony sought by a congressional subpoena contains evidence of felony (such as conspiracy and execution of an attempt to overthrow our democracy), then the crime – the fraud exception outweighs any privilege claimed in trying to keep the evidence a secret.

If witnesses refuse to honor subpoenas, will Congress use all the tools at its disposal to aggressively enforce compliance? There are three ways Congress can enforce its summons: through civil execution, criminal contempt, and its inherent contempt power.

Civil enforcement involves Congress going to court to begin the long and ineffective process of challenging the enforceability of subpoenas. This approach failed dramatically when Congress used it to attempt to force McGahn to testify about what Volume II of the Mueller Report called Trump’s possible obstruction of justice. McGahn militarized long court delays, managed to miss the allotted time, and was never compelled to testify.

The criminal contempt approach relies on the Justice Department’s help in pursuing a criminal contempt case in court in order to force compliance with congressional subpoenas. This was not a viable option when Trump was president and William Barr was attorney general, as Barr was far more interested in protecting Trump than in helping Congress obtain testimony that could have incriminated Trump. In a Biden administration led by Attorney General Merrick Garland, criminal contempt is back as an execution option.

With Attorney General Merrick Garland in charge, criminal contempt is back as an execution option.

The Supreme Court underlined the importance and value of the contempt power of Congress in 1821 when it ruled that the power of Congress to “detain someone for contempt is essential to ensure that Congress is not exposed to contempt. any indignity that rudeness, caprice or even conspiracy can do against it. “In the 1920s, Congress arrested and confined Mally Daugherty when he ignored a subpoena in connection with the Teapot Dome scandal , and the following decade, he used his inherent contempt power to arrest William MacCracken, an aviation industry lawyer involved in the sharing of airmail contracts through the United States Post. reaffirmed that Congress was in its power to compel MacCracken to testify and arrest him on suspicion of defiance.

Congress’ refusal to deploy its inherent power of contempt during the Trump years has left our republic weak and susceptible to attack from within. With the future of our democracy on the line, it is time for Congress to leave shyness at the doors of the chamber and compel witnesses to testify about their knowledge of the incidents that led and culminated in the January 6 attack. against the US Capitol.

The four witnesses who were subpoenaed could very well face criminal exposure for their role in the planning and execution of the attack on Capitol Hill. For example, Bannon confirmed a report that in a war council-like meeting on January 5, he told Trump, “It’s time to kill the Biden presidency in the Cradle.” These are seductive words, and it’s hard to imagine any sane lawyer letting Bannon run the risk of incriminating himself.

As a result, it is highly likely that these men will invoke their Fifth Amendment right against self-incrimination and refuse to testify. This will still spark further legal wrangling over whether Congress should grant some or all witness immunity. If they do, it makes the prospect of a successful prosecution of these men more difficult. But that’s a topic for another day. The legal row over subpoenas from the Special House Committee has just started.


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