Degrees of Contempt: Pundits Seek to Excuse the Lack of Prior Contempt Prosecutions in the Wake of the Bannon Sentencing

After the sentencing of Trump strategist Steve Bannon to four months behind bars, obvious comparisons were raised with the slew of contempt cases that the Justice Department refused to even submit to grand juries during prior Administrations.  The most cited was the contempt case against former Attorney General Eric Holder. That has led to various pundits insisting that there is no such comparison and nothing to see there. In my opinion, they are right to draw distinctions but wrong to dismiss the concern over selective prosecution of contempt cases.

For the record, I previously stated that the House was on solid legal ground in pursuing a contempt charge. He was a private citizen during the critical period under investigation by the J6 Committee and previously testified in other investigations. He also stated shortly before trial that he was in fact willing to testify. His legal position was hopelessly conflicted and incomplete.

Bannon could have simply appeared and refused to testify under the Fifth Amendment. Instead, he took the worse possible course: he defied Congress entirely in the face of a valid subpoena.

Holder was a classic executive privilege claim as the Attorney General advising the President. In that sense, there is a world of difference.

However, Holder (as I have long argued) was clearly in contempt of Congress and abused executive privilege arguments to shield embarrassing details tied to Operation Fast and Furious. While Judge Amy Berman Jackson insisted that contempt was “unnecessary,” Congress had every reason to seek his prosecution in the face of his open defiance.

The Holder case was also only one of such cases scuttled by the Justice Department. There was Lois Lerner, the former IRS official accused of targeting conservative groups and individuals.  Again, unlike Bannon, she appeared and then invoked the Fifth Amendment. That is a much better response. However, the House argued that she previously waived the privilege against self-incrimination in earlier testimony before Congress. The Justice Department refused to prosecute.

There was also former top Clinton aide Bryan Pagliano, who received two subpoenas from then House Chair Jason Chaffetz and defied them both.  He never appeared.  While he had an immunity agreement with the Justice Department (which was also controversial), the subpoenas were separate from that agreement.

I have long been critical of the Justice Department in its refusals to prosecute Executive Branch officials for contempt. The Bannon case is certainly distinguishable from past cases, but it still begs the question left from this history of non-prosecution.  It is not the Bannon prosecution per se that is troubling but its departure from historical practice at the Justice Department that raises legitimate concerns.