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Justice Department charges Steve Bannon with criminal contempt of Congress

Steve Bannon, once former President Donald Trump's chief strategist, is pictured in August 2018. The Justice Department has charged him with criminal contempt of Congress.
J. Scott Applewhite
Steve Bannon, once former President Donald Trump's chief strategist, is pictured in August 2018. The Justice Department has charged him with criminal contempt of Congress.

Updated November 12, 2021 at 4:05 PM ET

The Justice Department has filed a criminal contempt of Congress charge against Steve Bannon, a political adviser to former President Donald Trump, for defying a subpoena from the legislative committee investigating the Capitol siege on Jan. 6.

He is charged with one count for failing to appear for a deposition and another for refusing to hand over documents.

The department's move exposes Bannon to fines and as much as a year of prison time for each count. It follows weeks of deliberation by prosecutors in the U.S. Attorney's office in the District of Columbia, who will oversee the criminal case.

"Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law and pursues equal justice under the law," Attorney General Merrick Garland said in a statement. "Today's charges reflect the department's steadfast commitment to these principles."

Bannon refused to cooperate with the House panel investigating the storming of the Capitol, arguing he was covered under an assertion of executive privilege by Trump.

But legal experts said that claim lacked merit because Bannon is a private citizen who had not worked inside the White House for years — and because the current president, Joe Biden, had waived privilege on several matters before the House committee.

Bannon not only declined to share documents, he also refused to show up for testimony with the committee. The House voted to approve a criminal contempt referral for him last month.

Implications for the select committee's work

Defense attorneys in Washington had been expecting the Justice Department to draw a line with Bannon. Indeed, a decision not to proceed against Bannon could have spurred others to decline to cooperate and short-circuited the entire House investigation.

Chairman Bennie Thompson, D-Miss., has signed dozens of subpoenas in recent weeks for people in and outside the Trump administration.

The panel appears to be proceeding along multiple tracks: knocking at the doors of Trump's inner circle in the White House, as well as those who attended meetings at the Willard Hotel and elsewhere leading up to Jan. 6.

"The Select Committee will use every tool at its disposal to get the information it seeks, and witnesses who try to stonewall the Select Committee will not succeed," Thompson said last month. "All witnesses are required to provide the information they possess so the Committee can get to the facts."

The conundrum of Bannon in particular

Scholars who study the issue of executive privilege said the decision about Bannon is more complex than the public may appreciate.

Jonathan Schaub, a law professor at the University of Kentucky, pointed out in a recent post on the Lawfare site that the Justice Department has frequently declined to prosecute government officials for contempt after the president decides to assert executive privilege — and it's not clear how persuasive an assertion by a former president would be in the courts.

Garland had asserted any decision about Bannon would be made based on the facts and the law — not politics.

But that became complicated, too, after President Biden told reporters he thought people who defied the Jan. 6 committee should face prosecution.

A spokesman for the Justice Department, Anthony Coley, said the DOJ would "make its own independent decisions in all prosecutions. ... Period. Full stop."

Bannon's complicated ties to the White House

Bannon, 67, has had other recent brushes with the law. In the waning hours of his presidency this year, Trump pardoned Bannon, allowing him to avoid trial after federal prosecutors in New York accused him of defrauding people who donated to build a wall along the southern border.

"Mr. Bannon has been an important leader in the conservative movement and is known for his political acumen," Trump's press secretary, Kayleigh McEnany, said at the time.

Bannon fell out of favor with Trump in 2017, leading to his ouster as a top strategist in the White House. But the two mended relations, at least somewhat, and by January Bannon was touting the rally in Washington on his "War Room" podcast.

"All hell is going to break loose tomorrow," Bannon told his audience on Jan. 5, only hours before the storming of the Capitol.

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Corrected: November 11, 2021 at 11:00 PM CST
An earlier version of this story misspelled Jonathan Shaub's last name as Schaub.
Carrie Johnson is a justice correspondent for the Washington Desk.