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.

176 thoughts on “Degrees of Contempt: Pundits Seek to Excuse the Lack of Prior Contempt Prosecutions in the Wake of the Bannon Sentencing”

  1. OK, how about THIS as a possible action? What if Bannon had demanded to see it in writing, where he is guaranteed that he will actually GET a fair trial? Being guaranteed the Right to a fair and speedy trial, is NOT anywhere close to getting one! If the USSC can be so incompetent as to get the original R v. W decision egregiously wrong (Kagan and Alito’s words, BTW!), and then let it stand for 49 YEARS, then how can they be trusted to adjudicate even a parking ticket?!?!
    The ENTIRE legal system is corrupted, committing frauds and various other crimes against us on a daily basis, ergo it has ZERO legitimate power or authority over any man or woman on Earth!! How can it be otherwise, unless crimes have been turned into non-crimes in certain cases??

  2. Professor Turley, since you raise the issue of selective prosecution, which seems to be the norm these days regarding liberal vs conservative defendants, what do you think of “selective prosecution” as a legal defense strategy for this judicial era? I know that it generally failed in the context of alleged racial discrimination by prosecutors in the 1990s, but the 1996 case of US v Armstrong set a rule that today’s cases would seem to meet. I’m thinking specifically of President Trump’s case regarding presidential records relative to the treatment of prior presidents, but also the broader, highly partisan legal landscape .

  3. Interesting that the democrats have no reason to cooperate or abide by subpoenas from Republican controlled congress since the corrupt DOJ will not enforce them against democrats, in many cases, issuing immunity agreements without any references to obligation to testify.

  4. Remember when Obama tried to nominate Merrick Garland for the Supreme Court? How Obama and the partisan media claimed Garland was a prudential, centrist jurist?

    If Garland is their idea of a centrist, it’s hard to imagine a what they consider a leftist.

  5. So if you show up before a congressional hearing and you say you do not recall 29 times as an answer to questions no contempt of congress is recognized. Just showing up doesn’t mean that you have no contempt for congress. Look at the contempt on Peter Strzok’s face when he tries to justify his bias for the average American.

  6. Under the Crimson Kenyan’s regime the EPA was subpoenaed by congress to produce e-mail and other records that would have detailed their criminal activities but that had an unfortunate incident with their computer servers which wiped out all of the evidence.

    Also under the Crimson Kenyans regime NASA was subpoenaed by congress to produce their global temperature studies which MANY prominent scientist across the world said could only be possible if the numbers were falsified, and NASA simply refused to produce the records and the WORTHLESS R’s, once again and as ALWAYS, ran home crying to their mama’s!!

  7. The good professor says, “In my opinion, they are right to draw distinctions but wrong to dismiss the concern over selective prosecution of contempt cases.”
    He is sooooo right.
    But wait! There’s More!
    Selective prosecutions, selective transparency, SELECTIVE NEWS COVERAGE, selective fact reporting, selective censorship, selective funding of partisan beneficiaries, selective choosing of educators/professorships in higher learning.
    This is what happens when one political ideology insidiously takes control of MEDIA, academia, public institutions, and government. It flies in the face of what our founding fathers envisioned.

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

    One would think the AG a little too busy upholding justice, freedom and the American way right now for that kind of work – I thought there was an entire Office of Legal Counsel to do that nowadays? Also, iirc, Bannon was an ‘advisor’ to the president, an intimate one to hear him tell it, so why wouldn’t he also enjoy claims of executive privilege?

    There are degrees of contempt, but it’s not a contest (or at least it shouldn’t be.). They Are All Contemptuous. .. as far as I can tell.

    *Snowden for President 2024 ‘It’s The Only Way To Be Sure’

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