Bannon’s lawyer on Wednesday wrote a letter to the committee saying his client would not provide testimony or documents until the committee reached an agreement with former President Donald Trump on executive privilege or the court looked into the matter. “This is an issue between the committee and President Trump’s attorney, and Mr. Bannon is not required to respond at this time,” attorney Robert Costello wrote.
The sources added that while it may take some time before the House of Representatives sends such a referral to the Justice Department, the committee may take initial steps within hours of the committee’s announced deadline – Thursday – if Bannon refuses to cooperate. A heightened sense of urgency about the investigation itself.
“The reason some of these witnesses, people like Steve Bannon, who have declared their contempt for Congress feel they can get away with it four years ago,” Representative Adam Schiff, committee member Rep.
“He will never be prosecuted by Trump’s Department of Justice. But those days are over. And I see that not only is this essential to our investigation, but I also see this, enforcing the rule of law, as an early test of whether our democracy is recovering,” he added.
CNN Legal Analyst Norm Eisen quickly responded to Costello’s letter on Wednesday, saying, “It’s just a mistake. The message conveys a case that says ‘the president’ can make decisions about executive privileges. But Trump is no longer ‘the president.'” in the United States We only have one of those at a time, and that’s Joe Biden, and he’s not asserting a franchise here.”
Three other Trump allies also face recall deadlines this week. The commission said two of them, former Trump chief of staff Mark Meadows and former administration official Cash Patel, are “dealing” with the commission, though it remains unclear whether that contact amounts to any form of cooperation. Patel is not expected to appear before the committee on Thursday, multiple sources familiar with the plans told CNN.
As for whether Meadows and Patel will appear before the committee for their statements later this week, committee member Rep. Stephanie Murphy, a Democrat from Florida, said, “I expect they will do the patriotic thing and appear before the committee, and if they have nothing to hide, there is no reason to prevent them from appearing.”
‘Look forward to Steve Bannon’s statement’
Bannon has yet to cooperate and lawmakers took the opportunity before Thursday’s deadline to confirm he was obligated to do so.
“I look forward to Steve Bannon’s testimony tomorrow and receiving all the testimony and evidence we have subpoenaed,” select committee member Representative Jimmy Raskin, a Democrat from Maryland, said Wednesday in a tweet. “This is a legal system as well as a civic duty to share information about the most violent attack on Congress since the War of 1812.”
In a letter to the committee earlier this month, Bannon’s attorney said that “executive privileges belong to President Trump” and “we must accept his directives and respect his protest of executive privilege.”
The letter from Bannon’s legal team goes on to say that it may be up to the courts to decide whether he is ultimately forced to cooperate – essentially daring the House of Representatives to sue him or charge him with criminal contempt.
“As such, until these issues are resolved, we are unable to respond to your request for documents and testimony,” attorney Robert Costello wrote.
The claim that Bannon could be covered by the former president’s privilege is unusual, since Bannon was not working for the federal government during the period surrounding the January 6 rebellion.
Claims of privilege typically apply to officials close to the president and deliberations among government employees, and Bannon was fired from his position as White House counsel in 2017.
Several legal experts agree with the commission that Bannon, as a private citizen, would not have the capacity to block a subpoena by claiming an executive privilege.
Historic criminal contempt cases
As dangerous as the criminal referral appears, the House’s choice to use the Department of Justice may be more of a warning shot than a solution. Detaining Bannon in a criminal contempt case through trial could take years, and historic criminal contempt cases have been derailed through appeals and patents.
“They’re in a box, in a way,” Stanley Brand, the former House general counsel, said Wednesday. “Any way they go is donnybrook legal, and that will probably take time.”
“I’m watching people on TV freaking out about this. They’ll send [Bannon] for criminal contempt. Yes. Fine. “The case is just getting started,” Brand, who was the House general counsel during Laville’s contempt proceedings, told CNN. There is a trial. They will not be automatically convicted.”
The criminal contempt approach is also designed to be more of a punishment than an attempt to force a witness to speak.
“It’s not like civil contempt, you keep your cell keys in prison and you’re released” if a witness agrees to testify, Brand said.
Instead, the House essentially loses control of the case as the Department of Justice takes charge of the trial.
“They don’t have any time,” Brand added. They have to do it before next year, before elections are held.
CNN’s Kristi Johnson contributed to this report.