The indictment charging former Trump adviser Steve Bannon with contempt of Congress has all the trappings of a legitimate government proceeding. All the linguistic fluff aside, however, it is nothing more than a partisan abuse of power hatched by congressional Democrats and abetted by President Joe Biden and his Justice Department.
The authority according to which the House of Representatives charged Mr. Bannon with contempt derives from H. Res. 503. This resolution passed the House on June 30 and established a 13-member “Select Committee” to inquire into the January 6, 2021 turmoil in and around the U. S. Capitol Building.
That Bannon was a prime target of the inquiry became clear shortly after the committee organized itself and got down to the business of trying to link Trump, Bannon and others close to him to the Jan. 6 events on Capitol Hill. In September, Bannon was subpoenaed to appear before the committee and to produce documents. Following his refusal, the committee voted to hold him in contempt, a step the full House quickly rubber-stamped. The contempt resolution then was transmitted to the United States Attorney for the District of Columbia.
In earlier, more “normal” times, that would be where the matter would remain.
For example, of the five criminal contempt citations referred by the House to the Department of Justice since 2008, none resulted in grand juries returning indictments. In fact, the most recent examples of criminal contempt of Congress cases actually being successfully prosecuted took place in the 1970s as part of the Watergate scandal.
One reason for the dearth of criminal prosecutions for contempt of Congress is the obvious: only rarely will an attorney general belonging to a political party different from the House majority voting for such prosecution actually present the matter to a grand jury.
Another reason is that in most such disputes cooler heads prevail, with the Congress relying on the far less-heavy handed civil contempt power at its disposal to obtain information it needs; that is, if actually obtaining information is its real goal, as opposed to punishing an individual not of the majority’s liking.
In this current episode, with the Executive Branch and the House majority in Democrat Party hands, history, comity and evidence count for little.
Legally, however, the questions surrounding and underpinning the propriety of the contempt action against Bannon are more problematic for the Democrats than they might at first blush appear.
Start with the language written into H. Res. 503.
The resolution repeatedly refers to the “domestic terrorist” attack perpetrated by “insurrectionists” on and leading up to Jan. 6. By framing the purposes and functions of the committee in this way, the Congress is proposing to investigate acts that are neither defined in nor made criminal under federal law; there simply is no such crime as “domestic terrorism.” Even if there were, trying to shoe-horn the vandalism that took place on Jan. 6 into the subject matter of legitimate congressional legislative power would be a stretch to say the least.
Importantly, federal caselaw, including opinions by the Supreme Court of the United States, requires that for a criminal contempt of Congress to withstand legal challenge, the subject matter underlying the contempt must fall within the legitimate legislative jurisdiction of the House (or, Senate, as the case may be). Use of a congressional subpoena to gather information that is not based on any existing federal crime or linked reasonably to any legislation, appears to fail this threshold test.
The Democrats who drafted H. Res. 503 appear to have made a half-hearted stab at linking the formation of the select committee (and giving it subpoena power) to some sort of legislative function. After seven pages of incendiary verbiage about “insurrection” and “domestic terrorism” (acts not charged against a single of the nearly 700 individuals arrested for activities relating to the Jan. 6 disturbances), the resolution declares three “corrective measures” that possibly could result from the committee’s work.
This rhetorical fig leaf, however, should never be permitted to serve as the basis for convicting an American citizen for simply refusing to aid the Democrat Party in a vendetta against a former president.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia and serves as head of Liberty Guard.