(CNN)The committee investigating the January 6 Capitol Hill riot announced Thursday it is moving forward to hold Trump ally Steve Bannon in criminal contempt for refusing to comply with a subpoena, as his game of chicken with the House panel now enters a new and critical phase.
"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," Democratic Rep. Bennie Thompson, who chairs the committee, said in a statement on Thursday.
Bannon was scheduled for a deposition in front of the committee on Thursday, and Bannon's lawyer wrote in a letter the day before to the panel saying that his client will not provide testimony or documents until the committee reaches an agreement with former President Donald Trump over executive privilege or a court weighs in on the matter.
"We reject his position entirely," Thompson continued in his statement. "The Select Committee will not tolerate defiance of our subpoenas, so we must move forward with proceedings to refer Mr. Bannon for criminal contempt."
With the committee officially announcing its decision to move forward with criminal contempt for Bannon, the next step is for the committee to hold a business meeting, which Thompson said would be October 19.
What happens next
The business meeting next week is the first in a series of steps needed to move forward with criminal contempt. In this meeting, the committee will adopt a contempt report, which outlines the efforts the committee made to get a witness to comply with the subpoena, and the failure by the witness to do so.
This report is then referred to the House for a vote. If the vote succeeds, House Speaker Nancy Pelosi certifies the report to the United States attorney for the District of Columbia. Under law, this certification then requires the United States attorney to "bring the matter before the grand jury for its action," but the Justice Department will also makes its own determinations for prosecuting.
Any individual who is found liable for contempt of Congress is then guilty of a crime that may result in a fine and between one and 12 months imprisonment. But this process is rarely invoked, and rarely leads to jail time.
As severe as a criminal contempt referral sounds, the House's choice to use the Justice Department may be more of a warning shot than a solution. Holding Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
Other subpoenas
Three other Trump allies also face subpoena deadlines this week. Two of them, Trump's former chief of staff Mark Meadows and former administration official Kash Patel, have been "engaging" with the committee, according to the panel, though it remains unclear if that contact amounts to any form of cooperation. The select committee agreed to short postponements of Patel's and Meadows' appearances as they continue to engage with the investigation, a committee aide told CNN on Thursday.
But while Patel and Meadows appear to have bought themselves more time, the committee made clear Thursday its patience is limited. Rep. Adam Schiff echoed that sentiment in an interview Thursday, providing a rare window into how the committee is approaching talks with these individuals.
Schiff described Patel to MSNBC as "demonstration of the principle in the Trump administration that the more willing you were to do anything the President wanted, no matter how unscrupulous, the higher and faster you could rise."
"And he rose Phoenix-like through the Trump administration one position after another, even being contemplated to take over the CIA," Schiff said, adding that Patel was "an evil Zelig."
The committee was able only recently to serve Trump's former deputy chief of staff Dan Scavino a subpoena, a source familiar with the matter told CNN, and his deadline to appear for a deposition has likely been delayed.
Focusing on Bannon
CNN reported Wednesday that the committee is unified in its plan to seek criminal charges against those who refuse to comply, and lawmakers have specifically honed in on Bannon while discussing the option publicly.
"The reason why some of these witnesses, people like Steve Bannon, who have been public about their contempt for Congress feel they can get away with it is for four years, they did," Schiff told MSNBC on Wednesday.
Schiff, who also chairs the Intelligence Committee, noted that Bannon had refused to cooperate with the House's Russia investigation during the Trump administration because he "would never be held in contempt."
"He would never be prosecuted by the Trump Justice Department. But those days are over. And I view that not only as essential to our investigation but I also view this, the enforcement of the rule of law, as an early test of whether our democracy is recovering," the California Democrat added.
The letter from Bannon's legal team said it may be up to the courts to decide whether he is ultimately forced to cooperate -- essentially daring the House to sue or hold him in criminal contempt.
"As such, until these issues are resolved, we are unable to respond to your request for documents and testimony," wrote the lawyer, Robert Costello.
The claim that Bannon could be covered by the former President's privilege is unusual, because Bannon was not working for the federal government during the period surrounding the January 6 insurrection.
CNN legal analyst Norm Eisen swiftly pushed back on Costello's letter Wednesday, saying, "It's just wrong. The letter quotes a case saying 'the President' can make executive privilege determinations. But Trump is no longer 'the President.' In the United States, we only have one of those at a time, he is Joe Biden, and he has not asserted privilege here."
Privilege claims normally apply to close officials around the President and deliberations between government employees, and Bannon was fired from his role as a White House adviser in 2017.
Many legal experts agree with the committee that Bannon, as a private citizen, would have no standing to block a subpoena by claiming executive privilege.
Historic criminal contempt cases
As severe as a criminal contempt referral sounds, the House's choice to use the Justice Department may be more of a warning shot than a solution. Holding Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
"They're in a box, in a way," Stanley Brand, a former House general counsel, said on Wednesday. "Any way they go is a legal donnybrook, potentially that will take time."
Congress almost never forces a recalcitrant witness into testifying through prosecution, according to several longtime Washington attorneys familiar with congressional proceedings.
An Environmental Protection Agency official in the Reagan administration was the last person indicted for criminal contempt of Congress. The DC US Attorney's Office of the Justice Department took eight days from receiving the House's contempt referral for Rita Lavelle in 1983 to having a grand jury indict her. Lavelle fought the charges to trial, and a jury found her not guilty.
At least one other criminal contempt proceeding predating Lavelle, during the anti-communist McCarthy-era investigations of the 1950s, was overturned by the Supreme Court on appeal. In more recent administrations, the Justice Department has declined to prosecute contempt referrals -- though in those situations, Congress has made contempt referrals on members of the sitting president's administration.
"I'm watching people on TV bloviate about this. They're going to send [Bannon] to criminal contempt. OK. Fine. That just starts the case," Brand, who was the House general counsel during Lavelle's contempt proceedings, told CNN. "There's a trial. It's not automatic they're going to get convicted."
The criminal contempt approach also is structured to be more of a punishment than an attempt to compel a witness to speak.
"It's not like civil contempt, where you hold the keys to your jail cell and get released" if a witness agrees to testify, Brand said.
Instead, the House essentially loses control of the case as the Justice Department takes over to prosecute.
"They don't have any time," Brand added. "They've got to get this done before next year, before there's an election."
This story and headline have been updated with additional developments Thursday.
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