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Inherent Contempt Power: Why Not?

Why does the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol not use its powers under the Constitution to get what it needs? It has the inherent contempt power over individuals who refuse to cooperate with the its investigation.

Bennie Thompson (D-MS) chairs the Committee, which recently invited Steve Bannon — described as media executive, political strategist, and former investment banker, but known to us as Trump’s first mate, enabler, and cheerleader — to testify. Bannon declined and said he will not comply with the Committee’s subpoena, absurdly claiming “executive privilege” on the former president’s behalf.

Bannon’s smart-ass response, characteristic of Trumpers, coincides with his 2018 view that “Democrats don’t matter. The real opposition is the media. And the way to deal with them is to flood the zone with shit.”  Presumably, the Committee is the 2021 version of the zone to be flooded accordingly.

In response, Thompson promised that the “Committee will not tolerate defiance of our subpoenas so we must move forward with proceedings to refer Mr. Bannon for criminal contempt.”  This exposes Bannon to the risk of a fine and a maximum jail term of twelve months.

The Committee will report to the Speaker of the House (Pelosi) Bannon’s failure to comply with the Committee’s subpoena. The Speaker must then certify the Committee’s report on non-compliance and send it to the US Attorney for the District of Columbia who, in turn, must submit the matter to a grand jury for a decision to prosecute (or not).

This statute-based process caters to Bannon’s obvious aim to obstruct the Committee’s work. Even if the grand jury indicted Bannon for contempt and did so in the near future, the resulting legal processes — pre-trial motions, jury selection, trial, appeals — would take well into 2022 and the midterm election cycle, an election Republicans expect to win, in which case the Committee would instantly become irrelevant.

The Committee does not need to go this route. It has the inherent contempt power, the authority under the Constitution “to compel witnesses and testimony ‘to obtain information in aid of the legislative function.’” McGain v. Daugherty (1927). Both houses of Congress have “not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective”.

In practice, then, the House can authorize the Sergeant-at-Arms to execute an arrest warrant, take Bannon into custody, and bring him before the Committee for a hearing on the contempt charge. As with all contempt defendants, he would hold the key to his jail cell, his enjoyment of custody lasting only as long as he refused to comply with the Committee’s subpoena, though not beyond the end of the Congress.

That Congress has used its inherent contempt power sparingly after enacting the contempt statutes in 1857 does not negate its current validity. It is essential when dealing with Trumpers whose raison d’être is to show off by sticking a finger in the eye of norms. If traditional efforts at persuasion fail, a more immediate and tangible way is needed. The Committee must call Bannon’s bluff.

Would the arrest of Bannon inflame Trumpers? That is a legitimate concern given their demonstrated propensity for violence. But it’s the essence of Trumpers to be inflamed; Bannon in cuffs would not materially change that. Further, if compliance with lawful authority became conditioned on popular displeasure, law itself would come into question. It’s certainly not a condition tolerated in non-Trump-related contexts.

It is unclear why the Committee wants to rely on the statute rather than its inherent powers. If it really wants to compel Bannon’s testimony, it will make clear to him that his refusal to cooperate will keep him incarcerated until January 3, 2023 when the current (117th) Congress ends. That’s a time far longer than a judge would hand down in case of a contempt conviction, assuming a sentence would include prison time at all.

There is a whiff of traditional Democratic pusillanimity, the refusal to be clear where clarity is available and, with respect to Bannon and other witnesses similarly inclined, where it is especially important. If the Committee really wants to investigate “one of the darkest days of our democracy,” compliance with its subpoenas is the vital first step.

What political advantage the Committee’s Democrats think they might obtain by not immediately placing Bannon in custody is known only to them. Clearly, though, deterrence is not on the agenda. If their aim is anything other than bringing to book those who have been, and will continue to be, a threat to democracy, they are undermining the will of 81 million Democratic voters to no useful purpose.

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For democracy to survive, it must cripple, not accommodate, the reactionary charlatans and ignoramuses whose nihilism threatens it.

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