Litman: Don’t be too sure about the DOJ’s ‘duty’ to indict Bannon

Atty. General Merrick Garland faces a more complex decision than most people realize.

The House of Representatives has referred the Department of Justice to the United States Attorney for the District of Columbia to bring criminal contempt cases against Stephen K. Bannon. He refused to comply with the subpoena issued by the House select committee that was investigating the Jan. 17 events. 6.

The legitimacy of the referral cannot be questioned. There are all reasons to believe that Bannon has important first-hand information regarding the plan for the Capitol attack. He crowed the night before on t “All hell will break loose tomorrow …. You can also strap in .”

Rep. Liz Cheney (R.Wyo.), is the vice chair of the committee. Tuesday’s statement emphasized that there are strong reasons to believe Bannon knows whether and how Trump was involved in the Jan. 6 attack. There is no more important matter for Congress to investigate or for the American people to grasp.

Bannon’s snarky behavior in response to a subpoena is a flagrant and contemptuous violation the law.

Under the statute that governs contempt referrals, once Congress has found someone in contempt, it is the “duty” of the United States attorney “to bring the matter before the grand jury for its action.”

So what happens next should be a slam dunk, right? It is not.

The Department of Justice has resisted contempt referrals to the executive branch.

The opinions of the Office of Legal Counsel (the DOJ’s legal adviser to the president) will have a significant impact on Garland’s decision. You should keep in mind that memos from legal counsel, such as these, can be binding for the executive branch. Robert S. Mueller III declined to decide whether Trump obstructed justice by refusing to act on a memo that said that a sitting president could not be indicted.

One pertinent memo from legal counsel states that, despite the mandated language in the statute, the Justice Department still retains its traditional prosecutorial discretion regarding contempt referrals. This means that there is no greater “duty” than in any other case to refer to a grand jury.

Two additional memos, from 1980 to 2008,, are even more important and relevant. They state that the DOJ cannot prosecute criminal contempt cases against any current or former White House official for failing to comply with a congressional subpoena. This was based on executive privilege assertions. According to them, “As a matter statutory interpretation and constitutional separation of power,” such contempt claims could not be lawfully covered by the statute.

And indeed, since the 1980s, the DOJ has rejected a long list of criminal contempt referrals that turned on executive privilege. The Obama administration Atty. was referred by Congress. The department refused to proceed with the Fast and Furious investigation and referred Gen. Eric H. Holder Jr. to the criminal contempt section.

In these cases, the sitting president was the one who invoked executive privilege. President Biden has made it clear that he is not going to invoke the privilege as regards the Jan. 6 investigation, but here too Garland faces a complication.

In 1977, in the Supreme Court case Nixon vs. General Services Administration, the decision acknowledged that even former presidents could assert executive privilege. Although President Trump hasn’t formally done that — the lawsuit he filed asserts only that there is a need to straighten out whether he has such a privilege — Garland is unlikely to disregard the 1977 Supreme Court language in his deliberations.

For Garland, then, the Bannon referral sits at the seam joining two guiding principles: Return the Justice Department to compliance with set policies and norms after years in which they were shredded, and respond aggressively to the storming of the Capitol, which Garland has called a “heinous event.”

There is a way for Garland to square the circle. The Office of Legal Counsel memo that barred criminal contempt charges against Garland was based upon cases in which the department had issued legal opinions confirming that privilege assertions were valid.

Bannon’s claim that communications and documents subpoenaed are adequately covered by executive privilege is at best ludicrous. First, Trump has not actually claimed the privilege. The select committee’s subpoena also covers events that occurred years after Bannon left executive branch. It’s absurd to claim that the relevant testimony or documents must be kept secret in order to allow presidents to freely conduct country’s business.

Finally, even though Bannon may have had a strong claim to executive privilege the Congress’ and the public need to know the information included in the subpoena are paramount. That factor should win. (Likewise, public interest trumped Nixon’s claim to privacy in the 1977 Supreme Court case, which was about the disposition of the disgraced president’s papers. )

Garland is a careful, process-oriented, and dedicated to justice. The Office of Legal Counsel memos, and the Supreme Court language in Nixon vs. General Services Administration ensure a thorough decision-making process that considers all factors raised by the Bannon contempt referral.

Bannon should be convicted for criminal contempt. We shouldn’t assume that we know the direction Garland will take.

@HarryLitman

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