On Wednesday, the Biden White House reiterated its position: Second Letter from Dana A. Remus, Counsel to the President, to David Ferriero, Archivist of the United States, dated October 8, 2021 (excerpt):
President Biden has considered the former President’s assertion [of executive privilege], and I have engaged in additional consultations with the Office of Legal Counsel at the Department of Justice. For the same reasons described in my earlier letter, the President maintains his conclusion that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents provided to the White House on September 8, 2021. Accordingly, President Biden does not uphold the former President’s assertion of privilege.
As I earlier explained in Trump’s Coup D’Etat Co-Conspirators Subpoenaed To Testify Before Congress About January 6 Insurrection, the privilege is Trump’s to assert, it belongs to the incumbent president, who has already indicated he is disinclined to invoke the privilege (and reiterated it above). The privilege is also qualified and limited. It only applies to communications in the performance of a president’s responsibilities of his office, and made “in the process of shaping policies and making decisions.”
It should go without saying that this does not apply to a criminal conspiracy to engage in a coup d’etat against the U.S. government. A president cannot shield his heinous criminal activity for sedition, insurrection and treason against the U.S. government by the assertion of executive privilege. The crime-fraud exception to executive privilege eviscerates the privilege.
CNN reports, January 6 panel moves to hold Steve Bannon in criminal contempt:
The committee investigating the January 6 Capitol Hill riot announced Thursday it is moving forward to hold Trump ally Steve Bannon in criminal contempt for refusing to comply with a subpoena, as his game of chicken with the House panel now enters a new and critical phase.
“Mr. Bannon has declined to cooperate with the Select Committee and is instead hiding behind the former President’s insufficient, blanket, and vague statements regarding privileges he has purported to invoke,” Democratic Rep. Bennie Thompson, who chairs the committee, said in a statement on Thursday.
Bannon was scheduled for a deposition in front of the committee on Thursday, and Bannon’s lawyer wrote in a letter the day before to the panel saying that his client will not provide testimony or documents until the committee reaches an agreement with former President Donald Trump over executive privilege or a court weighs in on the matter.
“We reject his position entirely,” Thompson continued in his statement. “The Select Committee will not tolerate defiance of our subpoenas, so we must move forward with proceedings to refer Mr. Bannon for criminal contempt.”
With the committee officially announcing its decision to move forward with criminal contempt for Bannon, the next step is for the committee to hold a business meeting, which Thompson said would be October 19.
What happens next
The business meeting next week is the first in a series of steps needed to move forward with criminal contempt. In this meeting, the committee will adopt a contempt report, which outlines the efforts the committee made to get a witness to comply with the subpoena, and the failure by the witness to do so.
This report is then referred to the House for a vote. If the vote succeeds, House Speaker Nancy Pelosi certifies the report to the United States attorney for the District of Columbia. Under law, this certification then requires the United States attorney to “bring the matter before the grand jury for its action,” but the Justice Department will also makes its own determinations for prosecuting.
Any individual who is found liable for contempt of Congress is then guilty of a crime that may result in a fine and between one and 12 months imprisonment. But this process is rarely invoked, and rarely leads to jail time.
As severe as a criminal contempt referral sounds, the House’s choice to use the Justice Department may be more of a warning shot than a solution. Holding Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
* * *
CNN reported Wednesday that the committee is unified in its plan to seek criminal charges against those who refuse to comply, and lawmakers have specifically honed in on Bannon while discussing the option publicly.
“The reason why some of these witnesses, people like Steve Bannon, who have been public about their contempt for Congress feel they can get away with it is for four years, they did,” Schiff told MSNBC on Wednesday.
“[Bannon] would never be prosecuted by the Trump Justice Department. But those days are over. And I view that not only as essential to our investigation but I also view this, the enforcement of the rule of law, as an early test of whether our democracy is recovering,” the California Democrat added.
The letter from Bannon’s legal team said it may be up to the courts to decide whether he is ultimately forced to cooperate — essentially daring the House to sue or hold him in criminal contempt.
“As such, until these issues are resolved, we are unable to respond to your request for documents and testimony,” wrote the lawyer, Robert Costello.
CNN legal analyst Norm Eisen swiftly pushed back on Costello’s letter Wednesday, saying, “It’s just wrong. The letter quotes a case saying ‘the President’ can make executive privilege determinations. But Trump is no longer ‘the President.’ In the United States, we only have one of those at a time, he is Joe Biden, and he has not asserted privilege here.”
Privilege claims normally apply to close officials around the President and deliberations between government employees, and Bannon was fired from his role as a White House adviser in 2017.
Many legal experts agree with the committee that Bannon, as a private citizen, would have no standing to block a subpoena by claiming executive privilege.
Historic criminal contempt cases
As severe as a criminal contempt referral sounds, the House’s choice to use the Justice Department may be more of a warning shot than a solution. Holding Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
Since Bannon has no standing to assert executive privilege, this claim should be dismissed quickly as without merit. But who knows what a Trump appointed judge might do.
“They’re in a box, in a way,” Stanley Brand, a former House general counsel, said on Wednesday. “Any way they go is a legal donnybrook, potentially that will take time.”
Congress almost never forces a recalcitrant witness into testifying through prosecution, according to several longtime Washington attorneys familiar with congressional proceedings.
An Environmental Protection Agency official in the Reagan administration was the last person indicted for criminal contempt of Congress. The DC US Attorney’s Office of the Justice Department took eight days from receiving the House’s contempt referral for Rita Lavelle in 1983 to having a grand jury indict her. Lavelle fought the charges to trial, and a jury found her not guilty.
At least one other criminal contempt proceeding predating Lavelle, during the anti-communist McCarthy-era investigations of the 1950s, was overturned by the Supreme Court on appeal. In more recent administrations, the Justice Department has declined to prosecute contempt referrals — though in those situations, Congress has made contempt referrals on members of the sitting president’s administration.
[T]he criminal contempt approach also is structured to be more of a punishment than an attempt to compel a witness to speak.
“It’s not like civil contempt, where you hold the keys to your jail cell and get released” if a witness agrees to testify, Brand said.
Instead, the House essentially loses control of the case as the Justice Department takes over to prosecute.
“They don’t have any time,” Brand added. “They’ve got to get this done before next year, before there’s an election.”
There is another constitutional remedy available to Congress, inherent contempt, in which Congress enforces its own subpoenas. It was last used in 1935.
Rep. Jaime Raskin, a constitutional law professor and impeachment manager, has sponsored a bill along with several House members to restore the inherent contempt power of Congress. MEMBERS CALL FOR HOUSE VOTE ON INHERENT CONTEMPT RESOLUTION:
August 31, 2020
WASHINGTON, D.C. – Today, Representatives Ted W. Lieu (D-Los Angeles County), David Cicilline (D-RI), Val Demings (D-FL), Jamie Raskin (D-MD) and Joe Neguse (D-CO) issued the following statements calling for the House to pass the Congressional Inherent Contempt Resolution, which would enable the House to independently enforce subpoenas and other Congressional actions by directly levying penalties against those refusing to comply. The Members renewed their calls for creating a mechanism for the House to use its internal inherent contempt powers in light of an appeals court panel argued that the House has to pass a law allowing the enforcement of subpoenas before the court can compel compliance.
“The appeals court panel’s decision is stunningly wrong,” Rep. Lieu said. “At the same time, this protracted legal battle over subpoena enforcement tells us that the House needs to create procedures to enforce subpoenas itself. The Supreme Court already has said that Congress has that power through inherent contempt. It’s well past time to use it. The House needs to pass our inherent contempt resolution, which enables the House to levy penalties directly against those refusing to comply with Congressional subpoenas. This can be done without needing the approval of either the Senate or the Executive Branch.”
“Congress must do more to enforce our lawfully-issued subpoenas,” Rep. Cicilline said. “The inherent contempt power was used for decades to ensure no individual could hold themselves above the law. Given this President’s clear disdain for Congress’s ability to conduct oversight on behalf of the American people, it is time to reinvigorate this power to hold him and any future administrations accountable.”
“President Trump and his enablers have revealed just how fragile our republic is,” Rep. Demings said. “America has had its challenges, but our democratic system has survived for nearly 250 years because honorable men and women knew that their job was to serve the people. The President has demonstrated that he has no regard for the equal branches of government and will jeopardize everything we care about for his own personal interest. We need every tool possible to hold lawless people accountable. We must pass Rep. Lieu’s Congressional Inherent Contempt Resolution as soon as possible.”
“The Supreme Court has always emphasized that the two chambers of Congress have the same power to enforce their orders against defiant witnesses as courts have to enforce theirs,” Rep. Raskin said. “We need to restore and reinvigorate our inherent powers of legislative contempt to address the incorrigible lawlessness of the Trump administration.”
“The Court’s ruling is deeply flawed, and must be appealed,” Rep. Neguse said. “However, the decision also underscores the necessity for Congress to adopt rules for the use of inherent contempt. As the Court correctly noted, there is ample case law demonstrating that Congress has historically relied on its inherent contempt power. It is time we start using it.”
Politico reported in September, Jan. 6 committee prepares legal arsenal for likely subpoena fights (excerpt):
Inherent Contempt
Perhaps the least likely option in the committee’s toolbox is inherent contempt: Congress’ unilateral authority to fine or even jail recalcitrant witnesses.
Though there’s little dispute Congress has this authority, it has languished in disuse for [almost] a century. And in recent congressional probes — despite howls from some Democratic factions to dust it off — House Counsel Doug Letter has made clear this option simply would not be feasible, both practically and politically.
A report by the Congressional Research Service points out that there are drawbacks:
Moreover, inherent contempt has been described as “unseemly,” cumbersome, time-consuming, and relatively ineffective, especially for a modern Congress with a heavy legislative workload, which would be interrupted by a trial at the bar. Because of these drawbacks, the inherent contempt process has not been used by either body since 1935.
Adam Schiff has noted that attempting to wield inherent contempt might still wind up before federal courts, bogging down the process for months and undermining the decision to deploy it in the first place.
But that hasn’t stopped lawmakers from musing about the possibility. House Majority Leader Steny Hoyer, asked Tuesday about the prospect of inherent contempt, said the process “is on the table and will remain on the table.”
Raskin confirmed the committee hasn’t ruled it out.
“There is a growing appetite for using Congress’ own contempt powers,” he said.
The Capitol jail doesn’t exist anymore, but as the House of Representatives’ Office of the Historian has explained, most people in American history who have been held by the House over contempt charges (a very small number to begin with) have not been put in any specific “Capitol Jail.” Rather, they’ve just been put under lock and key within a spare room at the Capitol or even in a nearby hotel.
But, just because there’s no physical jail doesn’t mean there’s no right for Congress to detain individuals — and in fact the Capitol Police do maintain a holding cell a few blocks away.
Congress possesses “inherent contempt power” by which it can actually arrest people, hold them over for trial, and issue punishments without any help from either the executive or judicial branches.
The House should restore its constitutional power to enforce its subpoenas.
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