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Trump adviser Steve Bannon's indictment and arrest are a win for the rule of law

Future legal wrangling aside, it’s worth pausing to consider what just happened.

Former Trump adviser Steve Bannon surrendered to federal authorities on Monday, and was later released on his own recognizance after surrendering his passport. Bannon has been charged with two counts of contempt of Congress thanks to Attorney General Merrick Garland’s commitment to restoring the rule of law. By demonstrating that severe sanctions follow the flouting of subpoenas, whether from Congress or the courts, the Justice Department has sent a clear message to other witnesses that Bannon’s path of defiance can result in very real consequences — including possibly jail.

Before the indictment was announced on Friday, former Trump chief of staff Mark Meadows proved why such consequences are necessary.

Before the indictment was announced on Friday, former Trump chief of staff Mark Meadows proved why such consequences are necessary. Meadows was AWOL for his subpoenaed appearance before the House Select Committee, set for Monday. In light of the Bannon indictment, the committee should give Meadows a few days to rethink his options.

Meadows very well might do what former Trump acting Assistant Attorney General Jeffrey B. Clark did on Nov. 5: Show up but refuse to answer any substantive questions on grounds of executive privilege. While that might pay lip service to the power of legal compulsion, both Clark and Bannon’s executive privilege claim is a weak one. The resolution of that questionable defense may come from the U.S. Court of Appeals for the D.C. Circuit, which is considering Trump’s own privilege claim. The court will hear that case on Nov. 30 after Friday’s order to expedite the briefing.

Should the D.C. Circuit Court affirm the ruling against former President Donald Trump, and the Supreme Court leave that ruling in place or affirm it, Congress has an additional option. It could consider civil contempt for those like Clark who show up but use privilege as a pretext to stay silent. That would require the House to sue recalcitrant witnesses to obtain a court order compelling an answer to questions. Under such an order, witnesses may be held in custody until they relent and do as they should. As the legal saying goes, the witness “holds the key to the prison door.”

But legal wrangling aside, it’s worth pausing today to consider what just happened. The three branches of our constitutional government are working in tandem, exactly as the Constitution intended. Congress investigated the unprecedented Jan. 6 insurrection and subpoenaed those with knowledge about its planning. The current president declined to assert executive privilege. The District Court, in a closely related matter, rejected the former president’s claims that his administration’s documents should be shielded. That is what our system of separation of powers demands.

Bannon and Meadows have erroneously relied upon executive privilege. It is designed to protect the office of the presidency in the public interest, but it is not a lifelong prerogative. The ultimate authority on whether to assert privilege rests, in the final analysis, with the sitting president, in this case President Joe Biden, who is the current custodian of the office and institution of the presidency.

Further, to the extent that a crime or fraud is the subject of an investigation — the case with the Capitol riot — a claim of executive privilege must give way because it cannot be used as a cover-up for unlawful activity. Moreover, Bannon’s case is exceptionally weak inasmuch as he was not an official in the Trump administration or Trump’s legal counsel during the relevant period.

A claim of executive privilege must give way because it cannot be used as a cover-up for unlawful activity.

Select Committee Chair Bennie Thompson, D-Mich., Vice Chair Liz Cheney, R-Wyo., and members deserve congratulations, as does House Speaker Rep. Nancy Pelosi, D-Calif. Despite most Republicans refusing to join its investigation, the committee has moved forward at warp speed. It has reportedly talked to 150 or more witnesses.

Whatever happens with Bannon’s testimony, the committee’s search for the truth about who designed and planned the Capitol riot is well on its way. The committees’ letters to the most recent round of Trump administration witnesses suggest deep and broad new information about each alleged participant’s role.

Ultimately, all of us owe thanks to the attorney general and his lawyers, and to Biden for not interfering with their decision making. Garland steadfastly applied the facts to the law and did not comment on the Bannon investigation unless and until charges were filed. That is the kind of model leadership that America, and the DOJ, has sorely missed.