CNN analyst breaks down next steps to holding Bannon in contempt

The committee investigating the Jan. 6 Capitol Hill attack announced it is moving forward to hold Trump ally Steve Bannon in criminal contempt for refusing to comply with a subpoena, as his game of chicken with the House panel now enters a new and critical phase.

Criminal contempt is one of the three options the Jan. 6 congressional panel can pursue to enforce its subpoenas, along with civil and inherent contempt. To pursue criminal contempt charges, Congress would vote on criminal contempt, then make a referral to the executive branch — headed by the President — to try to get the person criminally prosecuted.

Bannon’s lawyer on Wednesday wrote a letter to the panel saying that his client will not provide testimony or documents until the committee reaches an agreement with former President Donald Trump over executive privilege or a court weighs in on the matter. 

If Bannon is a no-show, the committee is expected to immediately begin seeking a referral for criminal contempt after the subpoena deadline passes — essentially making an example of Bannon’s noncompliance as the House seeks more witnesses, sources familiar with the planning told CNN.

While it could take some time before the House sends such a referral to the Department of Justice, the committee could take initial steps within hours of the panel’s stated deadline – which is Thursday — if Bannon refuses to cooperate, the sources added, underscoring the growing sense of urgency around the investigation itself.

What this step could mean for Bannon: As severe as a criminal contempt referral sounds, the House’s choice to use the Justice Department may be more of a warning shot than a solution.

Holding Trump Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.

“They’re in a box, in a way,” Stanley Brand, a former House general counsel, said on Wednesday. “Any way they go is a legal donnybrook, potentially that will take time.”

Congress almost never forces a recalcitrant witness into testifying through prosecution, according to several longtime Washington attorneys familiar with congressional proceedings.

An Environmental Protection Agency official in the Reagan administration was the last person indicted for criminal contempt of Congress. The DC US Attorney’s Office of the Justice Department took eight days from receiving the House’s contempt referral for Rita Lavelle in 1983 to having a grand jury indict her. Lavelle fought the charges to trial, and a jury found her not guilty.

At least one other criminal contempt proceeding predating Lavelle, during the anti-communist McCarthy-era investigations of the 1950s, was overturned by the Supreme Court on appeal. In more recent administrations, the Justice Department has declined to prosecute contempt referrals – though in those situations, Congress has made contempt referrals on members of the sitting president’s administration.

“I’m watching people on TV bloviate about this. They’re going to send [Bannon] to criminal contempt. OK. Fine. That just starts the case,” Brand, who was the House general counsel during Lavelle’s contempt proceedings, told CNN. “There’s a trial. It’s not automatic they’re going to get convicted.”

The criminal contempt approach also is structured to be more of a punishment than an attempt to compel a witness to speak.

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CNN’s Paul LeBlanc contributed reporting to this story.