Steve Bannon of Breitbart News speaks on behalf of Judge Roy Moore at Oak Hollow Farm in Fairhope , Alabama, with one week to go in U.S Senate race, Dec. 5, 2017: Photo by Glynn Wilson

By Glynn Wilson –

WASHINGTON, D.C. — The House select committee investigating the Jan. 6 attack on the Capitol met Tuesday night and voted unanimously to hold Trump brain trust Steve Bannon in criminal contempt for blatantly defying a Congressional subpoena to produce documents and testify about his role in inciting the insurrection and attempted coup d’état.

Video: January 6 Committee Considers Holding Steve Bannon in Contempt

When Bannon made it clear that he would continue to take his corrupt orders from the former president — who is now suing to try to stop the investigation — and defy the subpoena, Chairman Bennie G. Thompson indicated the committee would move forward to go after him legally, in spite of the chances that a legal case could delay the proceedings.

“Mr. Bannon has declined to cooperate with the Select Committee and is instead hiding behind the former President’s insufficient, blanket, and vague statements regarding privileges he has purported to invoke,” Thompson said in a statement. “We reject his position entirely. The Select Committee will not tolerate defiance of our subpoenas, so we must move forward with proceedings to refer Mr. Bannon for criminal contempt. I’ve notified the Select Committee that we will convene for a business meeting Tuesday evening to vote on adopting a contempt report.”

He indicated the Select Committee will use every tool at its disposal to get the information it seeks to get to the bottom of all that happened leading up to the insurrection and attempt to stop Congress from certifying the Electoral College votes clearly showing that Democrat Joe Biden won the presidential election of 2020.

“Witnesses who try to stonewall the Select Committee will not succeed,” Thompson said. “All witnesses are required to provide the information they possess so the Committee can get to the facts.”

The decision to pursue a criminal complaint “signals the committee’s aggressive approach,” according to coverage in The Washington Post.

“We expect the Justice Department to adhere to the principle that no one is above the law,” said Democrat Adam Schiff, a member of the committee from California.

If convicted for contempt, a misdemeanor, Bannon could face a fine of up to $100,000 and a one-year sentence in federal prison.

Since the insurrection, Bannon has continued to advise the former president in his attempt to run again in 2024, and to create havoc in states around the country by firing up far right Republican activists to cause trouble in state after state.

Related: Heeding Steve Bannon’s Call, Election Deniers Organize to Seize Control of the GOP — and Reshape America’s Elections

According to legal expert and former U.S. Attorney Joyce White Vance, now a law professor at the University of Alabama School of Law, Bannon’s claim of executive privilege is a “frivolous claim” and Congress must not stand for it.

“Steve Bannon, no advocate of our democracy, is now in flagrant violation of the Congressional subpoena served on him by the House Jan. 6 Committee,” she writes on her website in a note called Bannon’s Gotta Go 2.0.

“What should Congress do?” she asks. “As we learned during the Trump administration, people who place their personal and political ambitions above the country they took an oath to serve don’t play by the rules. Time and time again, we’ve seen Trump and his allies stretch and twist the rule of law and the norms of governing, only to claim innocence by making unreasonable, bad faith arguments about what the law means and what it allows. Time and time again, we’ve seen them get away with it. These bad actors are thorns in the side of democracy, and they can draw dangerous amounts of blood if not held accountable.”

Unlike Bannon, the other recipients of the first wave of Congressional subpoenas — Mark Meadows, who left a safe seat in Congress in North Carolina to become Trump’s fourth chief of staff; Dan Scavino, the White House social media director who Trump entrusted with his Twitter account; and Kash Patel, a longtime Trump staffer who was sent over to became chief of staff to the acting secretary of defense Christopher C. Miller after the election — are reported to be engaged in negotiations with the committee.

It isn’t unusual to negotiate a Congressional subpoena to limit the scope of testimony and what documents will be produced, Vance said, and it’s expected that “accommodation” between the executive and legislative branches will take place and could result in resolving executive privilege issues without resort to litigation.

“That’s how democracy works when those in power are committed to it. Bannon and Trump aren’t committed to the rule of law, especially not when their interests are better served if investigation into the insurrection fails,” she says. “Bannon says he is refusing to comply with the subpoena on Trump’s orders, claiming executive privilege. It’s a frivolous claim, so clearly unsupported by the law that it’s obvious Bannon isn’t asserting it in good faith.”

Bannon left his job as a White House political adviser more three years before the insurrection. But even after he was fired from Breitbart News by libertarians Robert and Rebecca Mercer and banished to the wilderness of Eastern Europe after losing in his advocacy for former judge Roy Moore in the special U.S. Senate election of 2017 won by Democrat Doug Jones of Alabama, Bannon continued to whisper in Trump’s ear and influence his Twitter posts.

Even claims by other former White House employees of executive privilege are tenuous in this unique situation, Vance says, especially since the sitting president has rejected them. Biden has asked the National Archives to turn over documents and ruled that Trump’s claims of executive privilege are invalid as it relates to potential criminal activity to overturn a legal election, which experts from both sides of the political aisle have said was the most honest, scrutinized election in U.S. history.

Congress has two options, Vance says.

They could offer Bannon immunity from prosecution in exchange for testifying — “undesirable because it would block prosecution if evidence of criminality was subsequently developed,” she said. He could still refuse to testify and face the legal consequences.

“In fact, Bannon might prefer to cloak himself in the mantle of martyrdom, using it to advance Trump’s victimhood narrative,” she said. “But at a minimum, Bannon can be held accountable for his misconduct like anyone else who defies a Congressional subpoena.”

She says Congress should reform and strengthen the mechanisms available to Congress to enforce its subpoenas, but that’s not going to happen in a timely fashion.

“So, the realistic prospects here are civil enforcement and criminal prosecution. Congress could file a civil action to enforce its subpoena, but there’s a clear downside: that takes time,” she said. “Congress’ experience of doing just that with former White House counsel Don McGahn is a cautionary tale. His testimony took place 750 days after Congress subpoenaed him. Now, nine months out from the insurrection and just over a year away from midterm elections, the country can’t afford to wait that long to get to the truth here.”

Criminal contempt could be a quicker process, but it’s not a sure thing, she says.

“Even if Congress votes to refer Bannon to the Justice Department, it is prosecutors who have the discretion to decide whether to proceed. A decision to prosecute turns on whether they believe they have evidence of guilt beyond a reasonable doubt, sufficient to allow them to convict. If they did prosecute, Bannon would face a minimum sentence of 30 days and the possibility of up to a year in prison. In a criminal trial, DOJ would publicly put on evidence, and the perfidy of Trump and his allies would be on full display.”

That could potentially help Democrats in their mid-term election campaigns, but it could also further inflame the partisan divide.

Some have called for Congress to use its inherent contempt power, which arguably allows it to arrest and incarcerate Bannon until he testifies.

“That power hasn’t been used in almost 100 years and would undoubtedly lead to litigation and the risk of an already divided country being further inflamed by Trump’s claims of political persecution,” Vance says. “Moreover, once inherent contempt is brought back into use, the cat’s out of the bag. The prospect of Marjorie Taylor Greene and others of her ilk wielding it if Republicans take control of the House in the midterms should give pause to its proponents. Congress can’t afford to do nothing in the face of Bannon’s defiance, but options have to be evaluated for their potential benefit as well as detriment.”

None of the options are perfect, Vance writes, “but we can’t afford any more inaction.”

“If Congress refers Bannon to the Justice Department, DOJ should prosecute and they should act promptly,” she says. “As the historian Ruth Ben-Ghiat explains, authoritarians can retain legitimacy, even after they’re out of power, until their corruption is exposed, prosecution is pursued and legal reforms are made. This situation is an opportunity to get started on that. Trump has gone unchallenged for too long, no matter what laws and norms he violates. DOJ can work on behalf of the House to begin to fix that.”

If Congress can’t enforce its subpoenas in the face of blatant obstruction, designed to obscure the truth about an attempted insurrection, its ability to perform its oversight function as a co-equal branch of government will be effectively ended, Vance says.

“If the checks and balances between the branches of government collapse, we’ll be left with an impotent legislature, a Supreme Court dominated by Trump-appointed justices following Mitch McConnell’s confirmation power plays, and an executive branch that Trump could well take back in 2024,” she says. “That’s not a recipe for rebuilding democracy.”

The January 6 committee has to perform a careful balancing act on the “knife’s edge of pursuing the truth without giving Trump fuel to fan the flames that, under Bannon’s tutelage, he would use to consume the country,” she says.

“But compliance with subpoenas isn’t optional; they’re enforced every day in this country against people who would prefer not to testify. Because that’s how the rule of law works. And no one is above the law. It’s past time for Trump and Bannon to find out that means them too.”

Once the committee passes the report to hold Bannon in contempt, it will contain text of the resolution recommending that the full House vote to hold him in contempt. If passed, a near certainty since Democrats control the majority, the issue will then be referred to the U.S. Attorney for the District of Columbia. Under 2 U.S.C. § 194, following such certification it is the “duty” of the U.S. Attorney to “bring the matter before the grand jury for its action.”

The committee is made up of seven Democrats and two Republicans, all appointed by House Speaker Nancy Pelosi. It was created earlier this year after Republicans in the Senate blocked the creation of an independent commission modeled on the one that investigated the Sept. 11 terrorist attacks.

“Trump has urged his allies and former aides not to cooperate with the panel,” The Post reports. “He continues to spread false claims about election fraud that served as the rallying cry for his supporters when they stormed the Capitol on Jan. 6 in a violent bid to prevent lawmakers from certifying electoral college results and declaring Joe Biden the next president.”

Democrats and the panel’s two Republicans have portrayed the attack on the Capitol as an attack on democracy and said that a failure to fully investigate the event could clear the way for future attempts to overturn legitimate election results, and that includes the use of violence.

“We’re moving ahead quickly to get answers for the American people about what happened on January 6th and help secure the future of American democracy,” Thompson said.

The American people are watching to see if the Democrats can govern and hold Trump and his enablers accountable for undermining our form of government.

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