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The House select committee investigating the Jan.6 insurgency on Capitol Hill will vote on Tuesday whether to detain former Trump White House aide Steve Bannon for contempt of Congress for his refusal to comply with his assignment. If the contempt citation is approved – and given the statements by the two Republicans on the committee, it seems almost certain it is – it will go to the full House for a vote. And if passed, the speaker will certify the case to federal prosecutors, who by federal law will be required to take the case to a grand jury.

If convicted, Bannon faces up to a year in prison. And he can have company.

If convicted, Bannon faces up to a year in prison. And he may have company: While some officials who were part of former President Donald Trump’s administration have already appeared before the committee, others, including former White House chief of staff Mark Meadows and traveling assistant Kash Patel, may be reluctant. Trump has asked his former aides to defy subpoenas; Meanwhile, committee members flatly refuse to rule out a subpoena for Trump himself.

In an important sense, this fight is different from the conflicts over Congressional subpoenas that took place under the George W. Bush, Barack Obama, and Trump administrations. In these cases, the chamber was battling with the administration then in place, so the Justice Department simply refused to prosecute – notwithstanding the seemingly mandatory statutory language. But here the Democratic-controlled House and Democratic-controlled administration are likely to be simpatico. So if the House sends the case back to the Department of Justice, prosecutors will likely take it to a grand jury.

On the merits, any claim of privilege raised by the witnesses called to appear is absurd. This is especially true of Bannon who, as a professor of law Jonathan Adler highlighted, was “neither a lawyer nor a government official” and therefore has no legal basis for refusing to testify. If Bannon continues to refuse to comply with the summons, he should not only be tried but also sentenced.

This is as it should be, because Bannon’s rejection of the committee strikes at the heart of democratic governance in two distinct but related ways. The first concerns the committee’s substantive mandate: it is investigating an attempt by Trump supporters to overthrow the government by force. Naming insurgents and their instigators and facilitators is one way of trying to prevent these individuals from occupying positions of power in the future. The committee can also try to come up with proposals to make this kind of event less likely to happen, and less likely to succeed, in the future.

But details of that investigation aside, failure to comply with any legal summons from Congress must have serious consequences. Congressional inquiries serve a number of important functions: they can uncover social problems and develop new laws to address them; they can reveal and help rectify abuses committed by other government actors – including, in the extreme, through impeachment; and they can serve as an important mechanism for communicating and making arguments with the general public, a function that I have called “congressional over-talk.” Each of these functions is essential.

As the great jurist and New Dealer James Landis said in 1926, “To deny Congress the power to familiarize itself with the facts is to ask it to prescribe remedies in the dark. As to the use of surveys to eliminate abuses in other government institutions, the drafters of the US Constitution echoed the early 18th century description of the British House of Commons as the “great investigation of the nation.” Prominent members of the founding generation used the same language to describe the House of Representatives in particular and Congress in general. And a young scholar named Woodrow Wilson would write, decades before he was elected president, “It is the duty of a representative body to diligently examine every business of government and talk a lot about what it sees. … The information function of Congress should be preferred even to its legislative function.

Houses of Congress cannot perform any of these functions without being able to compel people to testify and hand over documents. Without this power, Congress would only have access to information that other actors wish to communicate to it; anything they chose to keep a secret would remain hidden. We would never accept these kinds of limitations on information in court proceedings – much less should we accept them in congressional proceedings, where the interests of the entire nation are involved.

Houses of Congress cannot perform any of these functions without being able to compel people to testify and hand over documents.

It is true that, if Bannon and perhaps others persist, they may be able to undermine some of these essential legislative oversight functions by keeping crucial information out of the reach of the committee. The committee may be hampered in its goal of finding out who exactly instigated the insurgency and how the insurgents were able to break through on Capitol Hill. And even if the committee is ultimately able to proceed without their testimony, Bannon and his colleagues may be able to slow down the investigation. (If Republicans regain control of the House in the 2022 midterm election, they could close the inquiry as soon as the new Congress begins in January 2023.)

It would be a loss not just for Democrats, and not just for those who rightly want to prevent another January 6 from happening again, but for our constitutional order as a whole. The best way to prevent this kind of undermining the vital role of Congress is to impose severe penalties on those who do so.

Just as there should be grave consequences for those who attacked American democracy by storming the Capitol on January 6, there should also be grave consequences for those who attack American democracy by thwarting legitimate congressional investigations. .




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