Bannon contempt vote threatens to erode congressional investigative power

‘Bannon, if you let him go, what about the Exxon CEO?’ asks former Oversight Committee chair

Rep. Bennie Thompson, D-Miss., chairs the House Select Committee to Investigate Jan. 6 markup Tuesday to vote on recommending that Stephen Bannon be held in criminal contempt of Congress. (Bill Clark/CQ Roll Call)
Rep. Bennie Thompson, D-Miss., chairs the House Select Committee to Investigate Jan. 6 markup Tuesday to vote on recommending that Stephen Bannon be held in criminal contempt of Congress. (Bill Clark/CQ Roll Call)
Posted October 21, 2021 at 11:26am

The House is poised to split along partisan lines Thursday on whether to seek criminal charges against a private citizen for refusing to comply with a congressional subpoena, an outcome that threatens to further erode the investigative power of lawmakers from both parties.

Republicans and Democrats have not shown much if any unity over the past decade on votes to hold executive branch officials in contempt of Congress. But the vote on Stephen Bannon in connection with the House select committee investigating the Jan. 6 attack on the Capitol extends that partisan divide to those outside government as well. Although Bannon was a one-time White House adviser to President Donald Trump, his actions after leaving government service are at issue for the panel.

[Trump, Bannon delays could impede Jan. 6 probe]

Republicans are expected to overwhelmingly oppose the panel’s move to utilize one of Congress’ most powerful tools — a recommendation that the Justice Department seek an indictment of Bannon on a charge that brings the possibility of up to a year in prison and a fine.

Former Virginia Republican Rep. Tom Davis, a chairman of the Committee on Oversight and Government Reform from 2003 to 2007, said Congress might come out of this Bannon contempt vote looking even weaker.

“Bannon, if you let him go, what about the Exxon CEO?” Davis said, raising a hypothetical. “I mean, what happens to the next person who’s not in government who gets a subpoena? You hold them in contempt, but nothing happens.”

Davis said Republicans’ opposition now could boomerang if they retake the House majority and want to conduct oversight of the Biden administration. “Should the Republicans take the House and start issuing subpoenas to Biden officials or even Biden sympathizers who aren’t officials, will they enforce those subpoenas?” Davis said.

Members of the Jan. 6 committee from both parties raised similar concerns about the greater power of the House ahead of Thursday’s vote. Bannon’s attorney, Robert Costello, told the panel Bannon is unable to comply with the subpoena until Trump’s executive privilege claims regarding information the panel is seeking are resolved. Bannon left the White House in 2017.

Chairman Bennie Thompson, D-Miss., said at a Rules Committee hearing Wednesday that the House “cannot let this conduct stand.”

“It would send a signal that Mr. Bannon can act like he’s above the law and get away with it,” Thompson said. “And it would damage this institution, the House of Representatives, by setting a dangerous precedent, giving witnesses a green light to ignore our investigative authority.”

Wyoming Republican Rep. Liz Cheney said Bannon is using privilege as a pretext for not appearing at all and for producing absolutely no documents of any kind.

“That puts this institution’s authority at significant risk, not just here and now, but in all future investigations,” Cheney said. “This contempt citation is crucial to our investigation. Witnesses cannot simply ignore congressional subpoenas when they prefer not to attend.”

But Cheney is just one of two House Republicans to back the Jan. 6 committee efforts. Trump retains a firm grip on the GOP and has harshly criticized the actions of the select committee and questioned the legitimacy of its existence, filing a lawsuit on Monday claiming the committee’s requests are illegal.

Republicans 'support their side'

House Minority Leader Kevin McCarthy pulled all five of his Republican choices for the committee after Speaker Nancy Pelosi determined that Reps. Jim Banks of Indiana and Jim Jordan of Ohio could not serve on the panel. Cheney and Rep. Adam Kinzinger of Illinois are the only Republicans on the panel and were appointed by Pelosi.

Oklahoma Republican Rep. Tom Cole said he’s “not sure it’s going to make a tremendous amount of difference one way or the other” if Republicans don’t back the Bannon contempt vote.

“Each side tends to support their side on these kinds of votes,” Cole, the ranking member of the Rules Committee, said. He added that had the select panel pursued the civil enforcement route, “they might have had some support.”

On Wednesday, House Republican leadership recommended its members vote “no” on the Bannon contempt resolution.

Minority Whip Steve Scalise of Louisiana, the No. 2 Republican in the House, told CQ Roll Call the select committee is “not trying to get facts” and “going on a witch hunt just trying to divert attention away from all the crises that are facing our country from inflation to the border to the supply chain problems that they created.”

Scalise said he expects almost all of his conference to vote against the resolution. Asked if Republicans voting against holding Bannon in contempt of Congress would hamstring their ability to enforce subpoenas when they retake the majority, he said: “We’re not going to put the cart before the horse.”

Mississippi Republican Rep. Michael Guest, a former district attorney, said he opposes holding Bannon in contempt.

“I can only speak for myself, and there’s a difference, in my opinion, between a standing committee and a select committee,” Guest said. “And this is a select committee that’s established by the speaker, in which she refused to accept any Republican appointments to that committee. And so, to me, that is the difference.”

In fact, Pelosi only blocked Jordan and Banks from serving.

'They've put partisanship above the institution'

Davis, the former Oversight Committee chair who also once led the National Republican Congressional Committee, said Congress has eroded its investigative power as votes on contempt of Congress have been mainly along party lines.

“There’s no question. They’ve done it to themselves, because they’ve put partisanship above the institution,” Davis said.

“It’s a shame things have to be political. Congress ought to operate as an independent body, but they don’t,” Davis said. “The president’s party, it’s just an appendage of the executive branch, and the minority party is now the opposition party. That’s not the way it was intended.”

In 2008, three Republicans voted with a Democratic majority to hold White House Counsel Harriet Miers and Chief of Staff Joshua Bolten in criminal contempt of Congress. There were 163 Republicans who did not vote in a walkout over what they called a partisan fishing expedition.

Four years later, 17 Democrats voted with Republicans and one voted “present” when a Republican majority voted to hold Attorney General Eric H. Holder Jr. in criminal contempt of Congress related to a subpoena in the gun-running Fast and Furious saga. And 108 Democrats did not vote in a walkout over what they called an illegitimate charade against Holder.

The walkout trend ended by 2014, when Democrats voted 6-187 against holding IRS official Lois Lerner in criminal contempt of Congress related to a subpoena from the House Oversight Committee. Only six Democrats did not vote.

And in 2019, Republicans voted 0-197 against holding Attorney General William P. Barr and Commerce Secretary Wilbur Ross in criminal contempt for failing to comply with subpoenas in connection with a dispute over the census. Only three Republicans did not vote.