Bannon's subpoena snub sets up big decision for Biden DOJ

Posted 5 days ago


Former Trump White House strategist Stephen Bannon’s choice to buck a subpoena from the House committee investigating the Jan. 6 attack on the Capitol could tee up a big decision for a Justice Department determined to strike an independent tone.

The House committee has said it may refer Bannon for criminal prosecution by the Department of Justice (DOJ) if he doesn’t appear for a deposition slated for Thursday.

Such a move would place Attorney General Merrick Garland in the center of a debate over whether to go after a former right-hand man of Donald Trump after vowing to restore the reputation of a department that was deeply politicized under the prior administration.

“That’s going to be something that will be considered at the highest levels at DOJ, and what they're going to consider with any referral like that is how strong of a case is it, and even if it’s readily provable — how important is it that we do this?” said Mark Osler, a former federal prosecutor who now teaches law at the University of St. Thomas.

The law allows for Congress to refer a noncompliant witness to the DOJ for criminal prosecution, which could result in jail time, a fine or both.

The Trump administration has a long history of defying congressional investigators, and Bannon, through his lawyer, said he would disregard the subpoena until a yet-to-be-filed legal case from Trump resolved whether the former president can rely on executive privilege to bar his ex-employees from testifying before lawmakers.

“We will comply with the direction of the courts,” Robert Costello, Bannon’s attorney, wrote in the letter.

Legal experts have expressed doubts Trump will make much headway in an executive privilege suit, as the protection largely applies to sitting presidents. Bannon is also being sought for questioning surrounding his role in planning rallies on Jan. 6 — activity that came years after his brief stint as a White House adviser.

Barbara McQuade, who served as a U.S. attorney during the Obama administration, said the referral provides the DOJ the opportunity to be an important accountability check on those in Trump’s orbit.

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