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Steve Bannon's House subpoena defiance should end in prosecution

There should be consequences for those who attacked democracy on Jan. 6 — and consequences for those who attack democracy by thwarting congressional investigations.

The House select committee investigating the Jan. 6 Capitol insurrection will vote Tuesday on whether to hold former Trump White House aide Steve Bannon in contempt of Congress for his refusal to comply with its subpoena. If the contempt citation is approved — and given the statements of the two Republicans on the committee, it seems almost certain to be — it will go to the full House for a vote. And if it is adopted there, the speaker will certify the matter to federal prosecutors, who will, according to federal law, be duty-bound to bring the matter to a grand jury.

If convicted, Bannon faces the possibility of up to a year in prison. And he may have company.

If convicted, Bannon faces the possibility of up to a year in prison. And he may have company: While some officials who were in former President Donald Trump's administration have already appeared before the committee, others, including former White House chief of staff Mark Meadows and peripatetic aide Kash Patel, may be balking. Trump has asked his former aides to defy the subpoenas; meanwhile, committee members are pointedly refusing to rule out a subpoena for Trump himself.

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In one important sense, this fight is different from the conflicts over congressional subpoenas that occurred during the George W. Bush, Barack Obama and Trump administrations. In those cases, the chamber was fighting with the then-current administration, so the Department of Justice simply refused to prosecute — the seemingly mandatory statutory language notwithstanding. But here, the Democratic-controlled House and the Democratic-controlled administration are likely to be simpatico. So if the House does refer the matter to DOJ, prosecutors are likely to bring it before a grand jury.

Substantively, any privilege claims raised by the subpoenaed witnesses are nonsense. This is especially true of Bannon, who, as law professor Jonathan Adler pointed out, was “neither an attorney nor government official,” and therefore has no legal basis for refusing to testify. If Bannon continues to refuse to comply with the subpoena, he should not only be tried but also convicted.

That is as it should be, because Bannon’s spurning of the committee strikes at the heart of democratic governance in two distinct but related ways. The first has to do with the committee’s substantive remit: It is investigating an attempt by Trump’s supporters to overthrow the government by force. Naming insurgents and their instigators and facilitators is one way to try to prevent these individuals from holding positions of power in the future. The committee can also try to put forward proposals to make this sort of event less likely to occur, and less likely to succeed, in the future.

But the particulars of this investigation aside, refusing to comply with any lawful congressional subpoena must have serious consequences. Congressional investigations serve a number of important functions: They can uncover social problems and shape new laws to solve them; they can reveal and help to rectify abuses by other government actors — including, at the extreme, through impeachment; and they can serve as an important mechanism for communicating with and making arguments to the broader public, a function I’ve termed “congressional overspeech.” Each of these functions is essential.

As the great legal scholar and New Dealer James Landis put it in 1926, “To deny Congress power to acquaint itself with facts is equivalent to requiring it to prescribe remedies in darkness.” As for the use of investigations to root out abuses in other governing institutions, the drafters of the American Constitution picked up on the early-18th-century description of the British House of Commons as the “grand inquest of the nation.” Prominent members of the founding generation used the same language to describe the House of Representatives in particular and Congress more generally. And a young scholar named Woodrow Wilson would, decades before his election to the presidency, write, “It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. ... The informing function of Congress should be preferred even to its legislative function.”

The congressional houses cannot perform any of those functions without the ability to compel people to testify and turn over documents. Without that power, Congress would have access only to information that other actors want to turn over; whatever they chose to keep secret would remain hidden. We would never accept those sorts of limitations on information in judicial proceedings — and even less should we accept them in congressional proceedings, where the interests of the entire nation are implicated.

The congressional houses cannot perform any of those functions without the ability to compel people to testify and turn over documents.

It is true that, if Bannon and perhaps others persist, they may be able to undermine some of these essential functions of legislative oversight by keeping crucial information out of the committee’s hands. The committee may be hindered in its goal of uncovering who precisely instigated the insurrection and how the insurgents were able to breach the Capitol. And even if the committee is ultimately able to press on without their testimony, Bannon and his colleagues may be able to slow the investigation down. (If Republicans were to retake control of the House in the 2022 midterm elections, they could shut down the investigation as soon as the new Congress begins in January 2023.)

This would be a loss not simply for Democrats, and not simply for those who rightly want to prevent another Jan. 6 from ever happening again, but for our constitutional order as a whole. The best way to prevent this sort of undermining of Congress’ vital role is to dole out severe punishment to those who would engage in it.

Just as there should be serious consequences for those who attacked American democracy by storming the Capitol on Jan. 6, there should also be serious consequences for those who attack American democracy by thwarting legitimate congressional investigations.