Biden's Comments Could Fumble DOJ Prosecution of Steve Bannon: Here's How

The House voted to refer the contempt charges against Trump ally Steve Bannon to the Department of Justice on Thursday, but President Joe Biden's recent comments supporting the referral may make the prosecution more difficult.

Ahead of the House vote, Biden told reporters last week that he "hope[s] that the [January 6 select] committee goes after them and holds them accountable," referring to those, like Bannon, who have refused to comply with the subpoena to testify before the January 6 committee.

When asked if they should face prosecution, Biden said, "I do, yes."

The president's remarks raised concerns that he was applying political pressure to the department led by his appointee Attorney General Merrick Garland.

Garland has remained silent as to whether the DOJ would charge Bannon should the vote pass.

Bannon, has already pointed fingers at Biden for weighing in on the matter, suggesting that the president "gave the game away" when making his comments and claiming that Biden has "already worked through this."

Representative Matt Gaetz, who Bannon had as a guest on his War Room: Pandemic podcast on Wednesday, claimed that the vote would make it more difficult for the Justice Department to refute that an investigation from the agency is politically motivated.

"Now it's far more difficult for the Justice Department to throw its hands in the air and say it's all a political squabble. which actually is what it is, because Biden is out there gaslighting them to engage in political process," Gaetz said.

Steve Bannon Biden Prosecution Criminal Contempt DOJ
The House voted to charge former White House Chief Strategist Steve Bannon with criminal contempt on Thursday. Bannon exits the Manhattan Federal Court on August 20, 2020 in the Manhattan borough of New York City. Stephanie Keith/Stringer

On Thursday, the House voted 229 to 202 to hold the contempt charges against Bannon, with nine Republicans breaking with party lines to vote "yes" in support of a referral from Congress.

Among the Republican votes were Representatives Liz Cheney, Adam Kinzinger, Peter Meijer, Nancy Mace, Anthony Gonzalez, John Katko, Fred Upton, Jamie Herrera Beutler and Brian Fitzpatrick.

Kinzinger, a staunch critic of former President Donald Trump and one of two Republican members of the January 6 committee, said he thought it was "appropriate" for Biden to weigh in on the matter.

"I think the president has every right to signal. I think he has every right to make it clear where the administration stands. I mean, God knows the prior administration, every two hours, was trying to signal to the Justice Department," he told CNN's State of the Union on Sunday.

The Justice Department has rarely successfully prosecuted criminal contempt referrals from Congress.

The most recent conviction of criminal contempt in a Congress case took place in the 1970s, when former FBI agent G. Gordon Liddy was convicted for refusing to answer questions about the Watergate scandal. Former Attorney General Richard Kleindienst, the most recent charge of criminal contempt, pleaded guilty.

Thomas Spulak, a former House counsel, pointed out to Politico that Bannon's case may also be particularly difficult because issues of executive privilege have not yet been resolved in the courts.

"Although there may be political alignment, there are institutional considerations involving DOJ, one of which is whether Garland wants to be drawn into a continuation of the Trump administration subpoena battles," Spulak said.

Trump has asked his former associates to refuse to comply with subpoena issued by the House committee by citing executive privilege.

However, the argument may be particularly weak for Bannon, who was not serving in the administration at the time of the attack on the Capitol.

Bannon left the White House in 2017 after serving as Trump's chief strategist during the former president's first seven months in office.

"The Select Committee is confident that no executive privilege assertion would bar Mr. Bannon's testimony regarding his communications directly with the President regarding January 6th—because the privilege is qualified and could be overcome," the panel wrote in a report released Monday.

Last year, Bannon was arrested and charged with federal fraud by the Justice Department under Trump but was formally pardoned by his longtime friend right before Trump left the White House in January.