To many in Washington, the criminal contempt case against Steve Bannon appears cut and dried: The podcaster and former Trump adviser has openly spurned a congressional subpoena to testify in an investigation into the January 6 US Capitol attack, claiming to be covered by executive privilege even though he wasn’t a government employee at the time.
But the longer it takes for the Justice Department to make a decision on whether to prosecute Bannon, the more questions swirl around whether this was the right strategy for congressional investigators. Democratic critics, already frustrated with Attorney General Merrick Garland over other moves, have focused their impatience over the Bannon referral on Garland because he has ultimate say on whether Bannon is prosecuted.
It’s been more than two weeks since the House voted to refer Bannon’s case to the Justice Department. Since then, Garland has said little publicly about the status of Bannon’s referral, but some people close to the attorney general say his experience of being blocked from the Supreme Court by Republicans for partisan reasons means he’s not unaware of the political forces he has to navigate.
While Justice officials say they expected criticism over the delay in making a decision on the Bannon criminal referral, Garland has established a methodical approach to making decisions, aware that the department will be criticized no matter which way it goes.
Justice Department officials tell CNN that prosecutors don’t feel pressure to act more quickly. Given that criminal referrals are rare and even more rarely enforced by the department, the Bannon decision will be dissected for years to come so the lawyers have to be sure they get it right, officials say.
The referral also came amid a transition at the Washington, DC, US Attorney’s Office, which is handling the matter. The Senate approved the new US attorney, Matthew Graves, on October 28 and he took office Friday.
At Justice, the two weeks it has taken to review the referral isn’t seen as consequential, officials say.
Still, members of the House select committee that’s investigating the Capitol riot believe a quick indictment of Bannon is needed — not only to send a message to other potential witnesses but also to reaffirm the power of the congressional subpoena.
On Friday, former Trump Justice Department official Jeffrey Clark, who had been subpoenaed, appeared before the committee for more than an hour but declined to answer questions. Committee Chairman Bennie Thompson, a Mississippi Democrat, warned Clark that he has a “short time” to reconsider and cooperate or risk facing “strong measures,” which could include being held in criminal contempt.
This recalls the Trump era, when numerous administration officials defied congressional subpoenas.
“They have obviously got their process. They’ve got to run their traps on all of the guidelines for deciding on a criminal prosecution in a case like that,” Rep. Jamie Raskin, a Maryland Democrat who’s a member of the select committee, told CNN last week when asked if he believes the Justice Department is dragging its feet on Bannon.
“We think it’s an open-and-shut case,” he added.
But there is also concern that any delay undercuts the pressure that the House select committee can bring on reluctant Trump allies to testify.
“Any perception that the rule of law does not apply is a harmful one,” Rep. Adam Schiff, a California Democrat who serves on the panel, told CNN on Friday when asked at what point the committee will become concerned that the Justice Department is not proceeding expeditiously.
A significant delay in a Bannon indictment could also complicate the committee’s ability to finish its investigation by early next year. Democrats face the daunting prospect of potentially losing the House in 2022, which would certainly mean an end for the committee and its work, meaning every day is precious.
That sense of urgency has been reflected in the investigation’s pace. The committee has proceeded with its probe while it waits for the Justice Department to rule on Bannon’s referral. It’s interviewed 150 people so far and is expected to send at least 20 more subpoenas in the coming days.
But with the Bannon decision in limbo, much of the committee’s work hangs in the balance, most notably its ability to compel cooperation from Trump allies who so far have remained elusive.
“We’re moving forward as quickly as we can as a committee. We can’t speak for … the Department of Justice,” Democratic Rep. Stephanie Murphy of Florida, a committee member, told CNN this week.
The committee remains largely in the dark as to why the Justice Department is not doing the same.
Schiff told CNN last month, before the panel officially moved forward with its criminal contempt referral of Bannon, that he believed the Justice Department under President Joe Biden would be more favorable to contempt referrals than it was when Democratic-controlled House committees had tried to take similar actions during the Trump presidency, when Republicans controlled the department.
“I think we are completely of one mind that if people refuse to respond to questions, refuse to produce documents without justification, that we will hold them in criminal contempt and refer them to the Justice Department, and unlike the last four years we expect the Justice Department to adhere to the principle that no one’s above the law,” Schiff told CNN on October 12.
That expectation, however, runs counter to Garland’s mission to restore normalcy at the Justice Department after four years of the Trump administration openly pressuring the department on matters close to the then-President.
In the closing days of his administration, Trump brought heavy pressure on his acting attorney general, Jeffrey Rosen, to try to use the Justice Department’s resources to support his false vote fraud claims and provide cover for overturning the presidential election results.
Rosen has testified to Congress about that pressure, in part because Garland and the Biden administration allowed the testimony by waiving traditional executive privilege claims.
Some Democrats, while trying to show support for Garland’s efforts to divorce the Justice Department from politics, are nonetheless nudging him about their expectations.
“It is not enough just to right the ship,” Rep. Jerrold Nadler, a New York Democrat who’s the chairman of the House Judiciary Committee, told the attorney general at a hearing recently. “As the chief law enforcement officer of our nation, it is also your responsibility to help the country understand and reckon with the violence and the lawlessness of the last administration.”
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