Terry H. Schwadron
Oct. 18, 2021
Why is there even a question about prosecuting Stephen K. Bannon – and other advisors to Donald Trump — for snubbing a congressional subpoena? Since when is a formal summons optional?
For that matter, why are Republican members of Congress, including House Minority Speaker Kevin McCarthy, ducking responsibilities to testify to the Jan. 6 select committee about what they did or did not do on that insurrection day?
Bannon informed the panel last week that he would defy a subpoena, in accordance with a directive from Trump. No court has definitively said whether conversations with private citizens are covered by executive privilege, quite separate from whether the conversations were about things that are outside the scope of the job, to say nothing of illegal.
Why, in the end, isn’t Donald Trump himself, for whom a subpoena now seems an inevitability, not standing up before the committee, as he does regularly now before his public rallies, and answering proudly that yes, of course he organized and enjoyed watching a mob attack the U.S. Capitol in pursuit of resolving the massive election fraud he blames for having stolen the presidency from him?
Bannon has no “executive privilege”; he wasn’t even a White House employee at the time. Yes, the House should lower a contempt of Congress ruling on Bannon, and yes, he should be prosecuted for refusing a subpoena. Otherwise, take the subpoena power away from a body that cannot enforce it.
Where Is Trump?
Quite apart from whatever the 1/6 committee collects as a definitive accounting of who participated in the planning and organizing of that day’s rioting, whatever it learns about the plotting that went on in the Oval Office and the delays in stopping it, to me one central mystery about all this is why Trump doesn’t take credit for his work?
Does Trump think something went wrong on Jan. 6 or not? Does Trump need to protect himself from lying under oath about election fraud, or about launching a seas of illegalities in pursuit of his White Whale?
If Trump believes in the truth of his cause, why in the world is he using convoluted arguments to fight subpoenas to testify about the thing he wants to talk about every day?
Sometime this week, perhaps tomorrow, the committee, with the public blessings of Joe Biden to pursue those resisting subpoenas, will vote to recommend just that. Bannon face criminal contempt charges for refusing to cooperate with its investigation. It will be seen as an escalated legal battle over access to witnesses and documents that explain the thinking behind the Jan. 6 attack. If referred for prosecution, the Justice Department would decide whether to accept it and pursue a criminal case.
On the one hand, we have been led to expect full arguments to protect any conversations involving Trump’s last month in the White House—a claim certainly discounted for anyone not part of the administration. On the other is the degree to which a president is allowed to pursue unlawful, even treasonous acts to bring down his own government.
The White House counsel’s letter by Dana Remus on this topic: “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.”
The difference in interpretation will be exactly the number of Democrats and Republicans in the House, because, as with the impeachments Trump faced, this is about partisan politics, not justice. It’s about preserving the Cult of Trump, spilling out, as we have seen this week, into intratribal warfare among Republicans who fully embrace Trump as savior and those who do not.
No Executive Privilege
For his part, Joe Biden has told his administration to decline any claims of executive privilege to shield White House deliberations or documents in an insurrection attempt.
It’s easy to become lost in the whorl of legalisms, protocols and even the politics. Actually executive privilege is just that, a protocol, not a law. As The Times and others have explained, Congress is a legislative body, not a law enforcement entity, and its ability to compel cooperation and punish wrongdoing on its own is limited. Its investigative tools are only as powerful as the courts decide, and the process of waging legal fights to secure crucial information and witnesses is likely to be a prolonged one.
My question is simpler: If the campaign we know as the Big Lie or Steal the Election is not only true, but a just attempt to right Trump’s claims of election wrongdoings, why doesn’t Team Trump want a public rumble under oath?
Why are Trump forces resisting the chance to make their ultimate case here rather than hiding behind would-be technicalities?
Of course, any answer that includes recognition that there were legal, moral, political, constitutional wrongdoings and actual crimes committed on Jan. 6 suggests that Trump cannot ever be allowed to serve as president again.
And any answer that includes arguments that there was no riot, that it was a peaceful gathering of patriots, that no one was stabbed, stomped or injured by Trump supporters brandishing flagpoles as weapons, that does not acknowledge calling for the public hanging of then-Vice President Mike Pence simply does not square with what we all saw with our own eyes.
The now-daily drip of memos, recollected conversations from around Trump, associated criminal cases that touch on roles during the Jan. 6 riot all point in a single direction: Trump was at the center of his own plotting that led, inexorably through thickets of individual attempts to pressure state election officials and governors to rewrite election results in Trump’s favor, directly to the Jan. 6 riot.
If Trump talks the talk, he should walk the walk whether in person, deposition, statement, video. Knock off the privilege and own what you did and continue to do to undermine democracy in these United States.