The Times Australia
The Times World News

.

Steve Bannon is held in criminal contempt of Congress, pushing key question over presidential power to the courts

  • Written by Jennifer Selin, Kinder Institute Assistant Professor of Constitutional Democracy, University of Missouri-Columbia
Steve Bannon is held in criminal contempt of Congress, pushing key question over presidential power to the courts

Every president in history[1] has refused to disclose information to Congress. These refusals are so commonplace that there is not even a comprehensive listing[2] of how often they occur.

In just the latest incident, the House of Representatives voted to hold former Trump adviser Steve Bannon in contempt[3] of Congress in mid-October 2021. At Trump’s request, Bannon defied a subpoena[4] from the committee investigating the Capitol insurrection, refusing to testify.

The House vote captured the constant power struggle[5] between presidents and Congress.

The recent eruption of this battle between the two branches of government over access to presidential information raises questions about the constitutional authority of Congress and how lawmakers acquire the information needed to hold the executive branch accountable in the U.S. system of separation of powers[6].

Steve Bannon getting into a limousine amid a crowd.
Steve Bannon, former White House senior counselor to President Donald Trump. Alex Wong/Getty Images[7]

Power to investigate

No constitutional provision explicitly states that Congress has the authority to investigate problems or defects[8] in the nation’s social, economic or political systems. But the legislature’s power to acquire information through investigation is an established[9] part of representative democracy.

This is true regardless of the investigation’s end result or even whether critics accuse Congress of being partisan. As the Supreme Court[10] put it in 1975, democratic governance means that some investigations may be nonproductive. In “times of political passion,” the court said, “dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed.”

Over 200 years of Supreme Court precedent[11] also recognizes that the fundamental right of Congress to investigate includes the power of subpoena, which compels testimony by an individual or requires them to produce evidence.

But the power of subpoena is of little value without the ability to enforce it. That mechanism is called contempt.

How contempt works

If a target of a congressional investigation refuses to comply with a subpoena, Congress can hold the individual in contempt. There are three forms of contempt – inherent, civil and criminal – each of which relies on a different branch of government for enforcement.

Congress has its own power[12] to enforce a subpoena. However, to use that power, Congress has to conduct a trial and then find the individual in contempt. Because this process is lengthy and cumbersome, Congress has not used it[13] since the 1930s.

Congress can also ask the courts to declare an individual in contempt. Known as civil contempt, this method requires a resolution authorizing a congressional committee or the House general counsel’s office to file a civil lawsuit. The courts then determine whether Congress has the right to the information it has demanded.

Congress used this power in the past three presidential administrations – Bush, Obama and Trump[14] – to acquire information.

However, civil contempt is also slow moving. For example, Congress held Attorney General Eric Holder in civil contempt in 2012 for withholding information relating to Operation Fast and Furious[15], a Department of Justice policy that allowed certain illegal gun sales in order to track Mexican drug cartels. Congress eventually obtained some records, but it took seven years [16] for courts to reach a settlement.

The last form of contempt relies on the executive branch – specifically the Department of Justice and U.S. attorneys – for enforcement. If someone refuses to testify or produce documents, a congressional committee can first cite the individual in criminal contempt[17] and then ask its chamber of Congress to adopt a resolution affirming the committee’s decision. After that resolution, the Department of Justice and U.S. attorneys decide whether to pursue the matter in court.

Criminal contempt is what the House used in the Bannon[18] case.

Bannon’s defiance

In June 2021, the House of Representatives established[19] a select committee to investigate the facts and circumstances surrounding the Jan. 6 attack on the Capitol. As part of the select committee’s investigation, committee Chairman Bennie Thompson signed a subpoena[20] requiring Bannon to produce documents by Oct. 7 and to appear for a deposition on Oct. 14.

In response to the subpoena, former President Trump instructed Bannon,[21] his former aide, not to comply.

Bannon refused[22] to provide a single document or appear for his deposition, citing Trump’s directive[23].

The select committee then issued a report[24] recommending that the House hold Bannon in criminal contempt. On Oct. 21, the House agreed with the committee’s recommendation and adopted a resolution[25] finding Bannon in contempt.

House Speaker Nancy Pelosi officially certified[26] the contempt report and referred it to the Department of Justice this week. The department will now decide whether to prosecute the case.

Attorney General Merrick Garland said[27] that the department “will apply the facts and the law” when making this decision.

Protesters brandishing flags reading 'Trump' and 'Don't Tread on me' The committee that issued the subpoena to Bannon is investigating the Jan. 6 Capitol riot by Trump supporters. Win McNamee/Getty Images[28]

The catch

While Bannon’s failure to comply with the congressional subpoena is striking, he needed to do so to challenge the subpoena.

To legally contest[29] a congressional request for information, an individual first must refuse to comply and then, if held in criminal contempt, can provide a defense.

Bannon’s defense – and Trump’s instruction not to provide information to Congress – centers on the concept of executive privilege. Since President George Washington, executive officials have claimed[30] the ability to withhold certain information that is fundamental to the operation of government. These claims relate to the idea that confidentiality encourages candor among presidents and their advisers when making important governmental decisions and policies.

In a letter to Bannon and three others under congressional investigation, Trump’s lawyer said they are protected[31] from compelled disclosure “by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.”

Presidents and their advisers have always interpreted executive privilege broadly[32]. However, President Trump and his advisers have taken an even more expansive view[33] than previous administrations.

My own research[34] suggests that Trump and his advisers have asserted this privilege in at least 84 different federal cases. In contrast, in Obama’s first term, only 37 federal cases involved executive privilege claims. The claims in both administrations were made in a range of cases, from Freedom of Information Act lawsuits to lawsuits over agency actions.

Courts have recognized[35] that cases over congressional access to information inevitably force the judiciary to side with one branch over the other. Yet, courts acknowledge[36] the need to arbitrate disputes resulting from congressional investigations, particularly when those investigations could implicate presidential misconduct or criminal activity.

At least 14 presidential administrations[37] have been the subject of investigations that required sitting or former presidents and their advisers to produce evidence. Legal disputes over these investigations have rarely made it to court.

But Bannon has made it clear[38] that he will not cooperate with Congress until the judiciary steps in.

How the courts handle the matter will have implications for how Congress holds current and future presidential administrations accountable.

[Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter[39].]

References

  1. ^ Every president in history (scholarship.law.duke.edu)
  2. ^ not even a comprehensive listing (www.justice.gov)
  3. ^ House of Representatives voted to hold former Trump adviser Steve Bannon in contempt (apnews.com)
  4. ^ Trump’s request, Bannon defied a subpoena (www.nytimes.com)
  5. ^ constant power struggle (theconversation.com)
  6. ^ U.S. system of separation of powers (www.law.cornell.edu)
  7. ^ Alex Wong/Getty Images (www.gettyimages.com)
  8. ^ problems or defects (supreme.justia.com)
  9. ^ established (supreme.justia.com)
  10. ^ Supreme Court (supreme.justia.com)
  11. ^ Over 200 years of Supreme Court precedent (supreme.justia.com)
  12. ^ own power (supreme.justia.com)
  13. ^ not used it (sgp.fas.org)
  14. ^ Bush, Obama and Trump (crsreports.congress.gov)
  15. ^ Operation Fast and Furious (www.thedailybeast.com)
  16. ^ seven years (www.politico.com)
  17. ^ criminal contempt (www.law.cornell.edu)
  18. ^ Criminal contempt is what the House used in the Bannon (www.cnn.com)
  19. ^ established (www.congress.gov)
  20. ^ Bennie Thompson signed a subpoena (www.cnbc.com)
  21. ^ instructed Bannon, (www.nytimes.com)
  22. ^ refused (www.jurist.org)
  23. ^ directive (www.nytimes.com)
  24. ^ report (docs.house.gov)
  25. ^ adopted a resolution (www.congress.gov)
  26. ^ Nancy Pelosi officially certified (www.npr.org)
  27. ^ Merrick Garland said (www.cnn.com)
  28. ^ Win McNamee/Getty Images (www.gettyimages.com)
  29. ^ legally contest (scholarship.law.cornell.edu)
  30. ^ executive officials have claimed (theconversation.com)
  31. ^ said they are protected (time.com)
  32. ^ interpreted executive privilege broadly (www.lawfareblog.com)
  33. ^ more expansive view (theconversation.com)
  34. ^ research (onlinelibrary.wiley.com)
  35. ^ recognized (law.justia.com)
  36. ^ courts acknowledge (casetext.com)
  37. ^ 14 presidential administrations (archive.constitutionproject.org)
  38. ^ made it clear (www.politico.com)
  39. ^ Get The Conversation’s most important politics headlines, in our Politics Weekly newsletter (theconversation.com)

Read more https://theconversation.com/steve-bannon-is-held-in-criminal-contempt-of-congress-pushing-key-question-over-presidential-power-to-the-courts-170426

Times Magazine

Headless CMS in Digital Twins and 3D Product Experiences

Image by freepik As the metaverse becomes more advanced and accessible, it's clear that multiple sectors will use digital twins and 3D product experiences to visualize, connect, and streamline efforts better. A digital twin is a virtual replica of ...

The Decline of Hyper-Casual: How Mid-Core Mobile Games Took Over in 2025

In recent years, the mobile gaming landscape has undergone a significant transformation, with mid-core mobile games emerging as the dominant force in app stores by 2025. This shift is underpinned by changing user habits and evolving monetization tr...

Understanding ITIL 4 and PRINCE2 Project Management Synergy

Key Highlights ITIL 4 focuses on IT service management, emphasising continual improvement and value creation through modern digital transformation approaches. PRINCE2 project management supports systematic planning and execution of projects wit...

What AI Adoption Means for the Future of Workplace Risk Management

Image by freepik As industrial operations become more complex and fast-paced, the risks faced by workers and employers alike continue to grow. Traditional safety models—reliant on manual oversight, reactive investigations, and standardised checklist...

From Beach Bops to Alpine Anthems: Your Sonos Survival Guide for a Long Weekend Escape

Alright, fellow adventurers and relaxation enthusiasts! So, you've packed your bags, charged your devices, and mentally prepared for that glorious King's Birthday long weekend. But hold on, are you really ready? Because a true long weekend warrior kn...

Effective Commercial Pest Control Solutions for a Safer Workplace

Keeping a workplace clean, safe, and free from pests is essential for maintaining productivity, protecting employee health, and upholding a company's reputation. Pests pose health risks, can cause structural damage, and can lead to serious legal an...

The Times Features

Prefab’s Second Life: Why Australia’s Backyard Boom Needs a Circular Makeover

The humble granny flat is being reimagined not just as a fix for housing shortages, but as a cornerstone of circular, factory-built architecture. But are our systems ready to s...

Melbourne’s Burglary Boom: Break-Ins Surge Nearly 25%

Victorian homeowners are being warned to act now, as rising break-ins and falling arrest rates paint a worrying picture for suburban safety. Melbourne residents are facing an ...

Exploring the Curriculum at a Modern Junior School in Melbourne

Key Highlights The curriculum at junior schools emphasises whole-person development, catering to children’s physical, emotional, and intellectual needs. It ensures early year...

Distressed by all the bad news? Here’s how to stay informed but still look after yourself

If you’re feeling like the news is particularly bad at the moment, you’re not alone. But many of us can’t look away – and don’t want to. Engaging with news can help us make ...

The Role of Your GP in Creating a Chronic Disease Management Plan That Works

Living with a long-term condition, whether that is diabetes, asthma, arthritis or heart disease, means making hundreds of small decisions every day. You plan your diet against m...

Troubleshooting Flickering Lights: A Comprehensive Guide for Homeowners

Image by rawpixel.com on Freepik Effectively addressing flickering lights in your home is more than just a matter of convenience; it's a pivotal aspect of both home safety and en...