Bannon indictment is about the process, not outcome

A federal grand jury returned an indictment on Nov. 12 accusing Stephen Bannon, a private citizen, of violating federal law by not attending his noticed deposition before Congress and by failing to produce subpoenaed written materials for a congressional investigation. Both his required attendance and the production of documents were in connection with the House Select Committee’s ongoing inquiry into the Jan. 6 attack on the Capitol building and the electoral certification process. The indictment is notable in numerous aspects, but not necessarily for the reasons bandied about on cable news shows and in many print publications.

There is no dispute that Bannon refused to show up for his deposition and failed to produce any materials on Oct. 7 and Oct. 14. Congress has the inherent ability to exercise its core constitutional activities of legislating and investigating. Early in the life of the Republic, Congress might even have sent its Sergeant-at-Arms to detain a person who didn’t comply with a congressional order. There is even a small holding cell in the belly of the Capitol for that purpose.

Times have changed.

Bannon’s failures to provide testimony and information in a congressional investigation are potential crimes, not based solely on the opinion of current congressional leadership, but because of long-standing federal law. A person’s willful failure to attend a deposition properly noticed by Congress and the willful refusal to produce documents identified in a congressional subpoena are criminalized by statutes (including 2 U.S.C. §192194) originally enacted before the Civil War. These statutes are critical to understanding the current case.

The U.S. Constitution only requires an indictment (a charging document issued by a grand jury, as in Bannon’s case) for federal felony offenses. But Bannon is charged with two misdemeanors. The Justice Department can usually, on its own authority, file a plain written accusation called an “information” alleging misdemeanor offenses. However, the particular statutes in Bannon’s case require the prosecutor to present the matter to a federal grand jury for charging consideration. This requirement likely reflects an effort to avoid, or minimize, the perception that the decision of whether to charge someone with contempt of Congress is dominated by political considerations. It is a small, but critical check on prosecutorial decision-making. The Justice Department honored the statute’s commandment in a timely manner. As such, the widespread criticism in the media of Attorney General Merrick Garland for not moving more quickly or for not summarily filing charges against

Bannon has been misplaced.

The charges against Bannon are about process, not outcome. Bannon could have appeared and refused to answer certain questions if truthful answers would implicate him in criminal behavior. Then the Select Committee would have the choice to seek immunity for Bannon to compel his answers. If the Select Committee forces such testimony, Bannon could arguably insulate himself from criminal liability for the events of Jan. 6.

That makes his actions in this case all the more interesting. His very public refusal to even show up for the House Select Committee’s investigation seems like a performance in political drama, not a shrewd tactical legal maneuver or the behavior of a true believer in some cause (misguided or not). However, that is a statement of opinion, not a legal judgment. The contempt of Congress case against Bannon now pending in U.S. District Court is the necessary step in America’s justice system to hold him accountable. The case relies on a law that is neither partisan in coverage nor of convenient, recent vintage.

Notably, Bannon faces a statutory minimum of one month in jail for each of the two counts and could face a maximum of two years of imprisonment upon conviction of both counts. While conviction doesn’t result in one becoming a felon, the power of the prosecution is in this possible punishment — not only for Bannon, but for other recalcitrant recipients of subpoenas issued by the Select Committee.

One of the core principles of the American constitutional system is that the community has a right to “every [person’s] evidence,” only subject to narrow privileges. The expectation for truthful and complete information isn’t limited to a courtroom; it includes congressional inquiries. One can think of no more important exercise of seeking truthful and accurate information than an investigation into the events surrounding the Jan. 6 assault on the Capitol.

Ultimately, the ongoing dispute isn’t about Bannon, despite the headlines. It is about whether a private citizen can ignore, even flout, the established powers of governance because he or she doesn’t like the identity of the requestor or where the path might end.

Michael McAuliffe is a former federal prosecutor serving both as a civil rights prosecutor at the Department of Justice and as a supervisory assistant U.S. attorney in the Southern District of Florida. He also served as the elected state attorney for Palm Beach County, Florida. Currently, he is an adjunct professor at William & Mary’s Law School and a senior lecturing fellow at Duke University School of Law.