Tuesday, September 27, 2022

Steve Bannon accused of criminal contempt of Congress, bringing key issue of presidential power to court

Every president in history has refused to disclose information to Congress. These failures are so common that there is not even an exhaustive list of how often they occur.

In the most recent incident, the House of Representatives voted to condemn former Trump adviser Steve Bannon against Congress in mid-October 2021. At Trump’s request, Bannon refused to testify on the agenda of the committee to investigate the Capitol uprising.

The House vote recorded a constant power struggle 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 mandate of Congress and how lawmakers obtain the information they need to keep the executive accountable in America’s separation of powers.

Steve Bannon, former senior White House adviser to President Donald Trump.
Alex Wong / Getty Images

Right to Investigate

No constitutional provision explicitly states that Congress has the power to investigate problems or shortcomings in a country’s social, economic, or political system. But the legislature’s right to receive information through an investigation is an established part of representative democracy.

This is true regardless of the end result of the investigation, or even whether critics accuse Congress of bias. As the Supreme Court stated in 1975, democratic governance means that some investigations can be counterproductive. The court stated that “in times of political passion,” dishonest or vindictive motives are easily attributed to legislative behavior and as it is commonly believed. “

The Supreme Court’s more than 200-year precedent also recognizes that the fundamental right of Congress to investigate includes the right to subpoena, which requires an individual to testify or require them to provide evidence.

But the strength of the subpoena does not matter much without the possibility of enforcement. This mechanism is called contempt.

How contempt works

If the subject of a Congressional investigation refuses to obey the subpoena, Congress may contempt the person. There are three forms of disrespect – congenital, civil, and criminal – each of which relies on different branches of government for coercion.

Congress has its own right to request a subpoena. However, in order to exercise this power, Congress must go through a trial and then find a person in disrespect. Because the process is long and cumbersome, Congress has not used it since the 1930s.

Congress can also require a court to declare a person disrespectful. This method, known as civil contempt, requires a decision allowing a congressional committee or the office of the General Counsel of the House of Representatives to file a civil action. The courts then determine whether Congress is entitled to the requested information.

Congress has used this power in the previous three presidential administrations – Bush, Obama, and Trump – to obtain information.

However, civil disrespect is also slow to manifest. For example, in 2012, Congress accused Attorney General Eric Holder of contempt of court for withholding information regarding Operation Fast and the Furious, a Department of Justice policy that allowed illegal arms sales to track Mexican drug cartels. Eventually Congress got some of the tapes, but it took the court seven years to come to an agreement.

The latter form of disrespect relies on the executive branch – in particular the Justice Department and US prosecutors – to enforce. If someone refuses to testify or produce documents, a congressional committee may first invoke that person with criminal contempt and then ask its House of Congress to pass a resolution confirming the committee’s decision. Following this decision, the Department of Justice and US attorneys decide whether to go to court.

Criminal disrespect was what House used in the Bannon case.

Bannon’s disobedience

In June 2021, the House of Representatives established a special committee to investigate the facts and circumstances of the January 6 attack on the Capitol. As part of the ad hoc committee’s investigation, committee chairman Benny Thompson signed a subpoena demanding that Bannon submit documents by October 7 and appear to testify on October 14.

In response to the subpoena, former President Trump instructed his former aide Bannon not to obey.

Bannon refused to provide any documents or appear to testify, citing Trump’s directive.

The special committee then released a report recommending that the House of Representatives charge Bannon with criminal contempt. On October 21, the House of Representatives agreed with the committee’s recommendation and passed a resolution of contempt for Bannon.

House Speaker Nancy Pelosi officially certified the contempt report and submitted it to the Justice Department this week. The department will now decide whether to take legal action.

Attorney General Merrick Garland said the department “will apply facts and law” in making this decision.

Bannon’s subpoena committee is investigating a January 6 Capitol riot by Trump supporters.
Win McNamee / Getty Images


Although he was impressed by Bannon’s failure to comply with the subpoena, he needed to do so in order to challenge the subpoena.

To legally challenge a Congressional request for information, a person must first refuse to obey, and then, in the event of criminal disrespect, can provide protection.

Bannon’s defense – and Trump’s order not to provide information to Congress – focus on the concept of executive privilege. Since the days of President George Washington, executives have asserted their ability to withhold certain information that is fundamental to the work of government. These claims relate to the idea that confidentiality encourages presidents and their advisers to be frank when making important government decisions and policies.

In a letter to Bannon and three other congressional investigators, Trump’s lawyer said they were protected from forced disclosure by “the executive and other privileges, including, but not limited to, communication with the president, deliberation, and attorney-client privileges.”

Presidents and their advisers have always interpreted executive privileges broadly. However, President Trump and his advisers take an even broader view than previous administrations.

My own research shows that Trump and his advisers have championed this privilege in at least 84 different federal cases. In contrast, in Obama’s first presidential term, only 37 federal cases dealt with demands from the executive branch. Lawsuits have been brought against both administrations in a range of cases, from lawsuits under the Freedom of Information Act to lawsuits related to agency actions.

The courts have recognized that cases of congressional access to information inevitably force the judiciary to side with one branch of government over another. However, the courts recognize the need for arbitration in disputes arising from Congressional investigations, especially when those investigations may involve presidential misconduct or criminal activity.

At least 14 presidential administrations have been the subject of investigations, in which incumbent or former presidents and their advisers provided evidence. Legal disputes over these investigations rarely go to court.

But Bannon made it clear that he would not cooperate with Congress until the judiciary intervened.

How the courts handle this issue will affect how Congress holds the current and future presidential administration to account.

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This article is republished from – The Conversation – Read the – original article.

Nation World News Desk
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