A criminal contempt report released by the House committee investigating the Jan. 6 attack on the Capitol largely pushes back on former Trump White House strategist Stephen Bannon’s claim that he can’t respond to a subpoena by the panel due to executive privilege.
The trove of documents was released ahead of a scheduled vote for a criminal referral to the Department of Justice (DOJ) after Bannon failed to show for a scheduled deposition, laying out the multiple attempts made to seek his testimony.
The report includes a letter from Bannon’s attorney obtained by The Hill and other media outlets, noting a threat from President Trump to sue and a need to “honor his invocation of executive privilege.”
It also includes a response from the committee’s chairman, Rep. Bennie Thompson (D-Miss.), tearing into Bannon’s claims.
“First, virtually all the documents and testimony sought by the subpoena concern Mr. Bannon’s actions as a private citizen and involve a broad range of subjects that are not covered by executive privilege,” Thompson wrote to Bob Costello, Bannon’s attorney.
“Even if your client has been a senior aide to the president during the period covered by the contemplated testimony, which he was most assuredly not, he is not permitted by law to the type of immunity you suggest Mr. Trump has requested he assert,” he added.
The report also includes a previously undisclosed list of the documents and information the committee sought from Bannon. Among details about his role in planning rallies on Jan. 6, the request asks for information about his coordination with another figure subpoenaed alongside Bannon, Kash Patel, who was then serving as the chief of staff to acting Secretary of Defense Christopher Miller.
It also asks if Bannon discussed the election with extremist groups such as the Proud Boys and Oath Keepers, far-right radio host and conspiracy theorist Alex Jones, and Rep. Scott Perry (R-Pa.), who was recently highlighted as a key figure in Trump’s pressure campaign on the DOJ in the waning days of his presidency, according to a report from the Senate Judiciary Committee.
The Oct. 8 letter from Thompson also noted that Bannon is seeking to defy the request based on a claim for executive privilege that has not yet been filed. That argument was undercut Monday when Trump filed a federal lawsuit against the Jan. 6 select committee seeking to block the panel from obtaining his administration’s records from the National Archives.
President Biden earlier this month waived executive privilege claims to a sweeping request from the committee seeking documents and communications from within the White House “relating in any way” to Trump’s wife, children and a who’s who of aides within Trump’s orbit.
“These are unique and extraordinary circumstances,” White House counsel Dana Remus wrote in a letter to the National Archives.
“Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities,” Remus added.
A final letter from Costello on Dec. 13 — the day before Bannon’s slated appearance — argued the committee will have to settle the disagreement with Trump, not his former strategist.
“Until such time as you reach an agreement with President Trump or receive a court ruling as to the extent, scope and application of the executive privilege…Mr. Bannon will not be producing documents or testifying,” Costello wrote.
Tuesday’s vote to refer Bannon for criminal charges, a likely occurrence given multiple members’ statements condemning any subpoena defiance, would tee up a vote in the House before the matter is formally forwarded to the DOJ. A criminal contempt charge could meran fines, jail time or both.
Other figures subpoenaed alongside Bannon, including Patel and former White House Chief of Staff Mark Meadows, are said to be “engaging” with the committee.
Updated 9:12 p.m.