Quick Thoughts On the Steve Bannon Indictment

Today a collective “finally” arose from those who seek the truth about the insurrection on January 6th. Trump insider Steve Bannon was indicted this evening. You can read the indictment HERE. Bannon’s attorneys and the DOJ have worked out a deal where Bannon will surrender himself for arrest and arraignment on Monday.

Bannon is charged with two counts of violating 2 U.S.C. § 192. This provision was clearly drafted for situations such as this. It reads as follows:

In evaluating where this may go a starting point is to note the two distinct counts of Contempt of Congress within the indictment. The first is for Bannon’s refusal to testify. The second is for Bannon’s refusal to produce documents. These two charges allow for a split decision of sorts where documents are produced but testimony is not provided.

In regards to the testimony it is helpful to remember why the Committee was so interested in questioning Bannon. Bannon seemed to have foreknowledge of what was going to happen on January 6th. During January 5th podcast Bannon said:

Whether the Committee has other evidence related to Bannon’s prescience for January 6th I don’t know, but the Republican Representative on the Committee Liz Cheney, said the Committee had information suggesting Bannon was “personally involved” in planning what happened. Adam Kinzinger, another Republican, said “either he was clairvoyant or he knew something.” I’m going to go ahead and rule out clairvoyant. In the Committee’s criminal referral the Committee noted that:

That Bannon seemed to know what would happen, before it happened, certainly explains the Committee’s interest in hearing Bannon explain all that. Particularly since Bannon was among those in the Willard Hotel “War Room” of Trump operatives whose agenda included finding means to delay the formal counting of electoral college votes.

However, all of this also suggests that Bannon has another, actually legitimate, privilege he can assert to avoid testifying before the Committee. That privilege is the 5th Amendment, and it is pretty much absolute. It requires only that the person invoking it has a plausible basis to believe what he would say could be used against him in a criminal prosecution.

While Bannon’s currently asserted privilege of executive privilege doesn’t have a chance of holding up his 5th Amendment privilege quite certainly does. Which leads to the disturbing conclusion that Bannon will never testify and explain his comments the day before January 6th.

Or will he? Bannon’s 5th Amendment privileges do not apply to the documents. When his executive privilege argument fails, as it will, Bannon can use his 5th Amendment privilege to defeat the count related to his refusal to testify. He can’t use it to defeat the contempt count related to his refusal to produce the documents requested by the Committee.

That creates some leverage where the DOJ could agree to drop both charges in exchange for his testimony where he agrees to waive the 5th Amendment privilege.

Will that happen? Hard to say. A lot depends on just how personally risky such testimony would be to Bannon. It may well be that Bannon refuses to testify and the documents get turned over in any event. There is no telling how useful they would be, perhaps not at all.

In regards to the documents, this is now a criminal case. I would not be surprised if the DOJ just gets a search warrant and takes them as evidence related to the charges at issue.

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80