BANNON MISTAKE?

Put aside for a moment, please, the disgrace of the Republican Party’s effort to do everything they possibly can to prevent public discovery of the truth about the planning for the January 6 insurrection riot. The Republicans blocked an independent commission and now they are doing their best to sabotage the House effort to find that truth. The facts are leaking out about a planning session or sessions that would destroy the Republican lie that the riot was some sort of accidental spur-of-the-moment misadventure.

The House Committee seeks the testimony of those who apparently have the facts about whether this insurrection was planned, and if so, who planned it. They have served subpoenas on a handful of people they thought would likely know the truth. So far the only one who has openly resisted is Steve Bannon, the on-again-off-again friend and advisor of the former president. Bannon has refused to comply with the subpoena because, he says, Trump told him to do so.

 Apparently there actually does exist some minute legal basis to claim that a former president enjoys some measure of executive privilege, and it may cover individuals who were not in the administration at the relevant time. So we are going to have a legal battle. So-called legal experts say that Bannon's case is very thin and he would lose a court fight. Even if he could establish that there is some notion of executive privilege that applies to him, he will lose because of the “weight" factor. (In the Nixon case the Supreme Court found that executive privilege did apply to the tapes of his conversations with Haldeman and Erlichman, but the importance of the tapes outweighed any claim of executive privilege.)

So for sure it is the intention of the Trump-Bannon team to "slow walk" the legal process in the hopes that the Republicans can regain control of the House in the 2022 elections. The House committee, on the other hand, is trying to rush the proceedings and that's why they ignored custom (which would have first called for a letter requesting the testimony and documents, negotiations that could take months, and ultimately a subpoena at the end of those negotiations if they failed.) Instead they went directly to the subpoena route.

 But the question is, did they make the right choice?  Is a congressional subpoena and a holding of criminal contempt the quickest  and surest way of getting Bannon's testimony and documents? Let's look at the options:

First, there is something called the "inherent" power of Congress to enforce its subpoenas. While not written explicitly in the Constitution, the process has been employed several times before, most recently in the 30s. It’s simple: Congress asks the question, the witness refuses to answer, the House Sergeant at Arms picks up the witness and puts him in a Capitol basement jail cell until he changes his mind. Very fast, very efficient, and it certainly is not going to happen this time around for lots of reasons. For better or worse, that option is off the table.

Second, Congress can go to a federal District Court and seek an order directing the witness to testify. The committee would submit its arguments. Bannon would be given time to respond to submit his arguments, and the judge would be given time – any amount he or she wanted – to decide the question. If Bannon lost he would take an appeal — another lengthy legal process of petition, response, rebuttal, argument, and decision. If Bannon lost again he would seek a stay from his buddies on the Supreme Court —the team that displayed its reluctance to stay an unconstitutional law blocking abortions in Texas. My guess is that this time they would issue a stay. (Does the majority of this court care more about Bannon than they do about Texas women being deprived of their reproductive rights? Sure they do.)  

By the time the Supremes calendared the case, received and read the briefs, heard oral argument and stroked their chins contemplating the appropriate result of Bannon's appeal, it is probable that November 2022 would be history. This is important because if the Republicans captured the House, they could simply decide “Y’ know, we've changed our minds, we don't really want to speak to Bannon after all." If you have any doubt about that conclusion, please remember that 202 Republican representatives voted against holding Bannon in criminal contempt and did not want the House to hear what he had to say.

So the question is, is this method most likely to bear fruit given the fact that (gasp) Kevin McCarthy might be Speaker of the House come January 3, 2023?

Third, Congress can do what it actually did: hold the witness in criminal contempt and then try to persuade the Department of Justice to prosecute the case. In Trump Era I, several criminal contempt of Congress cases were ignored by Barr’s Department of Injustice. 

The current referral to the DOJ has several disadvantages for prompt enforcement. To begin with, the Department needs to study the matter and then caterpillar-moving Merrick Garland needs to decide whether the DOJ will prosecute or not. One would think this is an easy question that could be answered promptly, but we are dealing with an AG who has proved to be setting slow-moving records. (The only people he's indicted so far in the matter of the Capitol insurrection are the crowd loonies. The people who are really behind that disgrace are basking free and easy in Mar-a-Lago and envions.)

But let's assume the DOJ decides to prosecute. (Contempt of Congress is a misdemeanor punishable by up to a year in jail.) Now we have more slow-walking steps. The matter needs to go before a grand jury. Assuming the grand jury indicts, Bannon will present his legal arguments to a judge in an effort to dismiss the indictment. We'll have counter submissions, oral argument and a decision. Assuming the decision favors the DOJ, the judge will schedule a trial at which 12 citizens will decide the question. (Caution: One legal scholar suggests that if the trial judge announces he or she will not render a sentence exceeding six months, the judge could try the case without a jury. Hmm.) But if it goes to a jury, and one of the jurors is a fan of Kevin McCarthy, there will be a mistrial and we'll start all over again. Of course, if Bannon is convicted he will appeal to the Circuit Court, and if he loses there he gets a shot at the Supremes.  

The plus side of the criminal contempt method is that if the DOJ decides to prosecute, Kevin McCarthy doesn't get to withdraw the case against Bannon even if McCarthy is the new Speaker of the House. The chief prosecutor of the land, the President of the United States, remains in office until January 20, 2025.

Oh yeah, a guilty verdict and a short jail sentence for Bannon stlll does not necessarily produce testimony and documents!

Fourth, the fastest way to get Bannon’s testimony and documents is for Merrick Garland to serve him with a grand jury subpoena. Bannon will still have his slow-walking defenses but there may be fewer steps to the process, and once again the soonest the Republicans could gain control of the executive is 2025. The problem is, if and when Bannon folds, and turns the material over to the Grand Jury, it’s secret, and won’t be public until leaked. By that time, the Committee may file an incomplete report, or be dissolved altogether by a cnange in power.

Did the Congressional committee make the right call regarding remedy? Is the DOJ and the judiciary capable of responding in a timely fashion or will they suffer the Trump-Bannon slow-walk process to succeed? Will the Supremes disgrace themselves again? Will we ever learn the truth of January 6?

It's all very depressing.

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