Litman: Do not be too certain in regards to the DOJ’s ‘accountability’ to indict Bannon


WASHINGTON, DC - NOVEMBER 08: Former White House senior counselor to President Donald Trump Steve Bannon leaves the E. Barrett Prettyman United States Courthouse after he testified at the Roger Stone trial November 8, 2019 in Washington, DC. Stone has been charged with lying to Congress and witness tampering. (Photo by Alex Wong/Getty Images)

The righteousness of the legal contempt referral in opposition to Stephen Okay. Bannon is not in query. (Alex Wong / Getty Images)

Atty. Gen. Merrick Garland has a much more difficult resolution coming his means than folks notice.

The Department of Justice, within the particular person of the United States legal professional for the District of Columbia, has gained a referral from the House of Representatives to convey legal contempt fees in opposition to Stephen Okay. Bannon, who has refused to agree to a subpoena from the House make a choice committee investigating the occasions of Jan. 6.

The righteousness of the referral isn’t doubtful. There is each explanation why to suppose Bannon has essential first-hand details about the making plans of the Capitol assault. After all, he crowed the evening prior to on his podcast: All hell goes to wreck free the following day. Strap in.

In addition, because the committees vice chair, Rep. Liz Cheney (R-Wyo.), emphasised Tuesday, there may be sturdy explanation why to suppose Bannon is aware of if and the way Trump used to be individually concerned within the Jan. 6 assault. No subject is extra essential for Congress to probe or for the American public to know.

As for Bannons thumbing his nostril at a subpoena, it will now not be a extra flagrant or a extra contemptuous violation of the regulation.

Under the statute that governs contempt referrals, as soon as Congress has discovered any individual in contempt, it’s the “duty” of the United States legal professional “to bring the matter before the grand jury for its action.”

So what occurs subsequent must be a slam dunk, proper? But it is not.

As it seems, the Department of Justice has emphatically driven again in opposition to contempt referrals associated with the manager department.

The Office of Legal Counsel, the DOJs prison guide to the president, is liable for critiques that can forged a big shadow on Garlands resolution. Remember that sure prison suggest memos, together with those, are binding at the government department. (One such memo, which concluded {that a} sitting president could not be indicted, drove Robert S. Mueller III’s declining to decide whether or not Trump obstructed justice.)

One of the pertinent prison suggest memos holds that, however the necessary language of the statute, the Justice Department keeps its conventional prosecutorial discretion over contempt referrals. In different phrases, there’s no extra accountability to visit a grand jury than in some other case.

Two extra memos, from 1980 and 2008, are but extra vital and on level. They dangle that the DOJ “may not” prosecute legal contempt fees in opposition to a present or former White House reputable who ignores a congressional subpoena in keeping with an statement of government privilege. As an issue of statutory interpretation and the constitutional separation of powers, the reasoning is going, the statute used to be now not meant to, and may now not lawfully, follow to such contempt claims.

And certainly, for the reason that Nineteen Eighties, the DOJ has rejected a protracted checklist of legal contempt referrals that grew to become on government privilege. For instance, Congress referred Obama management Atty. Gen. Eric H. Holder Jr. for legal contempt all over the Fast and Furious investigation, however the division declined to head ahead.

In the ones instances, in fact, it used to be the sitting president who asserted government privilege. President Biden has made it transparent that he’s now not going to invoke the privilege as regards the Jan. 6 investigation, however right here too Garland faces a complication.

In 1977, within the Supreme Court case Nixon vs. General Services Administration, the verdict said that even former presidents may assert government privilege. Although President Trump hasnt officially completed that the lawsuit he filed asserts handiest that there’s a wish to straighten out whether or not he has this kind of privilege Garland is not going to forget the 1977 Supreme Court language in his deliberations.

For Garland, then, the Bannon referral sits on the seam becoming a member of two guiding rules: Return the Justice Department to compliance with set insurance policies and norms after years through which they have been shredded, and reply aggressively to the storming of the Capitol, which Garland has referred to as a heinous tournament.

There is some way for Garland to sq. the circle. The Office of Legal Counsels memo that has precluded pursuit of legal contempt fees used to be in keeping with instances through which the dep. issued prison critiques that the assertions of privilege have been correct.

Bannon’s advice that the subpoenaed paperwork and communications are correctly coated by way of government privilege is spurious at very best. First, theres the truth that Trump hasnt in fact asserted the privilege. On best of that, the make a choice committee’s subpoena comes to occasions that took place years after Bannon left the manager department; its ridiculous to mention the related testimony and paperwork will have to be stored secret to make certain that presidents can freely do the countrys trade.

Finally, although Bannon had a valid declare to government privilege, Congress and the publics wish to know the ideas coated by way of the subpoena is paramount, and that issue must be triumphant. (Likewise, public pastime trumped Nixons declare to privateness within the 1977 Supreme Court case, which used to be in regards to the disposition of the disgraced president’s papers.)

Garland has proved to be a wary, process-oriented legal professional basic, and one devoted to justice. The Office of Legal Counsel memos and the Supreme Courts language in Nixon vs. General Services Administration ensure an ultra-thorough decision-making job that weighs the entire issues raised by way of the Bannon contempt referral.

Bannon merits to be convicted of legal contempt. But we shouldnt suppose we all know which means Garland will move.


This tale at the start gave the impression in Los Angeles Times.

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