Calls for Steve Bannon to Face Criminal Charges After Executive Privilege Ruling

The case for Steve Bannon to be charged with criminal contempt of Congress has been strengthened after a judge rejected former President Donald Trump's attempt to use executive privilege to keep documents about the run-up to January 6 hidden.

On Tuesday, District Judge Tanya S. Chutkan ruled against Trump's attempts to shield papers detailing conversations between him and his allies from the House select committee that is investigating the Capitol riot.

"[Trump's] position that he may override the express will of the executive branch appears to be premised on the notion that his executive power 'exists in perpetuity,' Chutkan wrote in her ruling.

"But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President [Joe Biden] 'is not constitutionally obliged to honor' that assertion."

Bannon, a former White House senior adviser, has refused to hand over any documents in relation to the January 6 inquiry after he was subpoenaed. His refusal cited Trump's executive privilege argument.

On October 21, the House of Representatives voted to hold Bannon in criminal contempt of Congress. The vote meant the case was referred to the U.S. attorney's office in Washington, where prosecutors will decide whether to present it to a grand jury for possible criminal charges.

Nearly three weeks after the vote, however there is no indication of whether or not the Department of Justice will pursue a prosecution.

Ahead of Chutkan's ruling, Attorney General Merrick Garland did not give a definitive answer on whether any steps had been taken to bring charges against Bannon.

"This is a criminal matter," Garland said in a press conference on Monday. "We evaluate these in the normal way we do facts in the law, by applying the principles of prosecution."

When pressed on whether there had been any new developments, Garland replied: "No."

The decision on the release of Trump's papers, which are in the National Archives, may go all the way to the Supreme Court. Trump's spokesman Taylor Budowich has confirmed that his legal team will be appealing the court ruling.

"The battle to defend Executive Privilege for Presidents past, present & future—from its outset—was destined to be decided by the Appellate Courts," Budowich tweeted. "Pres. Trump remains committed to defending the Constitution & the Office of the Presidency, & will be seeing this process through."

After Tuesday's ruling, Ryan Goodman, a law professor at New York University Law School, said Chutkan's decision could spell trouble for Bannon.

"The court's opinion rejecting President Trump's effort to invoke 'executive privilege' is devastating. It was not a close call. Now it's time to indict Bannon for defying Congress's subpoena," Goodman tweeted.

"To be clear: Even if Bannon could hide behind exec. privilege, would never mean can refuse to show up to Congress. Even if Bannon could hide behind exec. privilege, would not cover his communications with other people. Court opinion shows exec. privilege claim is bunk."

CNN legal analyst Elie Honig said the subpoenas against Trump's allies, which aim to find out what he knew in the run-up to the deadly riot, will only be effective if Garland and the Department of Justice prosecute Bannon.

"If Merrick Garland does not prosecute Steve Bannon, all these other witnesses … they are going to have no deterrent either and they are going to see it as a free-for-all to do what they will. So, there is a lot riding on what Merrick Garland decides to do here," Honig said.

Rep. Adam Schiff (D-CA), a member of the House select committee, said on CNN's Cuomo Prime Time on Monday: "If the Justice Department doesn't hold Steve Bannon accountable, it only lends credence to the idea that some people are above the law and that cannot be true in this country."

Historically, the DoJ rarely seeks prosecution for executive branch officials whom Congress has voted to hold in contempt.

It has been decades since the last case occurred. In 1983, former Environmental Protection Agency official Rita Lavelle was charged after she refused to testify before a House subcommittee. In 1984, she was sentenced to six months in prison for lying to Congress.

Bannon's lawyer Robert Costello has been contacted for comment.

steve bannon contempt
Steve Bannon exits Manhattan Federal Court in New York on August 20, 2020. BRYAN R. SMITH/AFP/Getty Images