In addition, the Justice Department’s Office of Legal Counsel has said in multiple opinions — including one from the 1980s involving Anne Gorsuch, the mother of Supreme Court Justice Neil Gorsuch, who refused to turn over documents in her capacity as administrator of the Environmental Protection Agency — that the Justice Department has discretion on when to prosecute for contempt, even when receiving a referral from the House.
Still, the Bannon case is different, as Democrats hold both Congress and the White House — and because the committee is investigating a violent insurrection of Trump’s supporters who beat law enforcement officers, broke into the Capitol and interrupted the certification of Biden’s victory.
“What we’re talking about is this massive, violent assault on American democracy,” Raskin said.
Thomas Spulak, a former Democratic counsel to the House, said there are arguments that could be made for and against a Justice Department prosecution. On one hand, he said, “Some have suggested that perhaps this Justice Department doesn’t want to get caught up in a continuation in the saga that went on in the last administration over subpoenas with the House.”
But, given the severity and historic nature of Jan. 6, “This is a significant matter for the House and the House is going to press this very hard — and it might be difficult for the administration to not act on it.”
Even if the department does decide to prosecute, the case could take years to play out — potentially pushing past the 2022 election when Republicans could win control of the House and end the investigation.
And if they don’t prosecute, then the House will likely find another route. A House-authorized civil lawsuit could also take years, but force Bannon and any other witnesses to defend themselves in court.
Another option available to Congress would be to try to imprison witnesses who defy them — an unlikely, if not outlandish, scenario. Called “inherent contempt,” the process was used in the country’s early years but hasn’t been employed in almost a century.
House Intelligence Committee Chairman Adam Schiff, another member of the panel, says if Justice prosecutes the case it will have “a vigorous effect in terms of other potential witnesses’ willingness to cooperate” or face consequences.
“I think the criminal justice system, when it has a mind to, can move very quickly,” Schiff said. “And we hope that it will.”