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Editor's note: Judy Woodruff's interview with Josh Gerstein was conducted in two parts after the live interview was interrupted due to technical difficulties and then resumed later in the show. This segment has been edited to merge both parts for our online audience.
Thursday marked a critical step in the investigation into the Jan. 6 Capitol riot, as the U.S. House voted to hold former Trump aide Steve Bannon in criminal contempt for defying a congressional subpoena. Democrats' rebuke was joined by nine Republicans, with a final vote of 229-202. Judy Woodruff discusses the vote's implications with Josh Gerstein, senior legal affairs reporter for Politico.
Today marked a critical step in the investigation into the January 6 Capitol riot, when, as we reported earlier, the U.S. House voted to hold Steve Bannon in contempt for defying a congressional subpoena.
Democrats were joined by nine Republicans in rebuking the former Trump aide, for a final vote of 229-202.
Rep. Bennie Thompson (D-MS):
This isn't about punishing Steve Bannon.
The debate preceding today's House vote went beyond the issue of Steve Bannon, and whether to cite him for contempt of Congress.
It went to the heart of lawmakers' willingness, or not, to keep on probing what led to the deadly January assault on the U.S. Capitol. Democrats, including Bennie Thompson, the chair of the select committee, urged colleagues to take a stand against Bannon for stonewalling the panel.
Rep. Bennie Thompson:
I'm not willing to get to the end of the select committee's work and look back wishing we had done more to uncover all the facts.
They found support from a small number of House Republicans, including the panel's vice chair, Liz Cheney.
Rep. Liz Cheney (R-WY):
The American people deserve to know what he knew and what he did.
But most Republicans criticized the investigation and how it is being carried out.
Rep. Jim Banks (R-IN):
The select committee is engaged in an unconstitutional political investigation.
The panel issued its subpoena to Bannon a month ago. It demands that Bannon sit for a deposition before lawmakers. It also orders him to hand over whatever records he may have of any communications with former President Donald Trump about January 6, as well as any relevant communications with other Trump allies like Rudy Giuliani.
Bannon argues, through an attorney, that he does not need to comply because former President Trump intends to assert executive privilege. The Bannon issue now goes to the Justice Department, headed by Attorney General Merrick Garland. Before today's vote, Garland opted not to tip his hand to whether the department will ultimately prosecute him.
Merrick Garland, U.S. Attorney General:
We will apply the facts and the law and make a decision consistent with the principles of prosecution.
The department is already in the middle of prosecuting hundreds of defendants facing criminal charges of their own stemming from January's riot.
And now, for a deeper look, I am joined by Josh Gerstein. He's the senior legal affairs reporter for Politico.
Josh Gerstein, thank you so much for joining us.
First of all, tell us again, how ordinary is it for the Congress to say that someone is in contempt of a committee?
Josh Gerstein, Politico:
Well, that's happened, I think, increasingly frequently in recent years, Judy. We have seen a number of citations. Former Attorney General Eric Holder was cited. Former Attorney General Bill Barr was cited.
What's really unusual here is to have a criminal referral that the Justice Department may seriously look at. It's been about 40 to 45 years since the Justice Department has brought a case under this particular criminal contempt of Congress statute.
So, remind us, what are the steps Justice Department goes through? I mean, what happens? Now that the House has taken this vote, what actually happens next?
So this will go to the U.S. attorney's office for the District of Columbia, which is basically part of the Justice Department. And they will consider whether to file a case.
The Justice — the law here in question does say that they're supposed to — that they have a duty to convene a grand jury or to consider bringing charges. In the past, that office has declined in many, many cases to file charges. But those generally involved executive branch or former executive branch officials, where that administration was upholding the privilege assertion.
What's unusual here is, President Joe Biden has said he doesn't think executive privilege should be invoked. So that's what the Justice Department is going to have to think about before they consider whether to possibly bring a criminal charge against Steve Bannon.
I think that's what we're trying to understand. What are the factors that Justice is going to be weighing as they make this decision? And how long do you think it's going to take them to make it?
Well, this does put the Justice Department in kind of an awkward position.
Most of the experts that I have talked to have said they think this is a rather weak assertion of executive privilege on the part of former President Trump and Steve Bannon. And the main reason for that is, number one, it is former President Trump, so it's not a current president.
And the second reason is that Bannon was not in the White House even at the time of these January 6 events. He was, at best, a private adviser or political adviser to President Trump. So, the problem, though, for the Justice Department is that, in the past, they have opined that, both those situations, there still could be a valid claim of executive privilege for a former president or an unofficial adviser.
So the question is, can they make a criminal case against Bannon while sort of not completely contradicting their past positions?
And thinking the whole time about precedent, about what this could mean for other presidents.
Well, that's exactly right, Judy.
I mean, the Justice Department is part of the executive branch. And so they do also have to take into consideration, even though President Biden has said he doesn't want to back up this claim of executive privilege, would they be sitting some kind of — would they be setting some kind of precedent that the next time this dispute comes up — and we have mentioned that these do come up fairly regularly — would there be a problem for another president, President Biden, or a future president, to assert privilege?
And just quickly, Josh, we know the committee is attempting to get cooperation from others who were advising former President Trump.
Some are saying they will cooperate. We have yet to see what that looks like. Do we have a sense of just how close this committee is going to get to understanding what happened on January 6? What was behind it?
Well, I think, Judy, they may succeed in exposing some things that haven't come out yet through the Justice Department's investigations of criminal acts on Capitol Hill.
I'm thinking in the area of finances, who financed the rally that President Trump held that day, what preparations there were in terms of security. What kinds of threats did the White House or other rally participants receive or perceive in that event on that day?
I think they could get into that. And part of the reason this effort is being pursued over Steve Bannon is I think to send a signal to other potential witnesses and others who might have documents related to the investigation that they should cooperate or they could face this kind of an enforcement action themselves.
Josh Gerstein, who is the chief legal affairs correspondent for Politico, thank you, Josh.
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