Jan 6 inquiry votes to hold Steve Bannon held in contempt for refusing to give evidence

boing
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A referral to the DOJ is more likely to be considered legally sound but I doubt there would even be a trial until 2022 and Bannon would not be jailed awaiting trial. It would have no effect whatsoever on Bannon now. If the Republicans steal the next presidential election Bannon will be pardoned almost by the time the sentence would begin (if not before, Bannon has lawyers to stall things).

Sending the Sergeant at Arms to arrest Bannon this minute would see Bannon in jail in hours or days. Maybe you think it would be less likely to stand up in court in the end, but 1) that’s just speculation, 2) that puts the “court cases take a long time” shoe on the other foot.

I don’t think it’s reasonable to say that the reason congress stopped using inherent contempt is that it didn’t work. It’s an extraordinary act that shouldn’t be done often. People like Bannon think congress is too weak to do it, that is why they are acting the way they are acting.

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Beau sums up the process quite nicely:

Don’t hold your breath waiting to see the Coup Master[s] wearing an orange jump-suit accessorized with shiny bracelets & anklets.

Given the failure of the Senate to [once again] get any type of Voting Rights bill up for mere debate, I see no reason the ongoing Coup won’t succeed. The Democrats seem to insist upon conducting Business As Usual, and mewling about ‘bipartisanship’ won’t cut it.

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Sending the Sargent at Arms to arrest Bannon would, in theory, see him brought before Congress first. To testify/comply with the subpoena. If he doesn’t there is an immediate trial, in Congress by Congress. And penalties are issued. It’s not a we hold him till he testifies thing. It seems like a simple habeas corpus was usually enough to keep people from being held longer than a few days during all this. It looks like past penalties were days in jail, and small fines.

Does that sound like a clean, neat, quick process? Does it sound like it even has teeth? I don’t think a vote to pursue that would go particularly well, I don’t think a resulting trial in the house would be all that neat. And from what I understand in the past those fines usually went unpaid, the short jail terms un-served. Cause all one has to do is not comply, or buy time with court challenges, till the Congressional term is up. At which point it all expires unless the new congress can be convinced to continue them or start over.

Well that seems to be the history of the thing.

This isn’t an explicit constitutional power with clear terms. It’s something that came out of Congress just doing it, before we had things like federal law enforcement or court officers. And Supreme Court decisions coming as it was used.

It wasn’t an extraordinary thing that was to be rarely used. Originally it was the only way to enforce these subpoenas. By the 1850’s it was confused enough we passed a law trying to speed it up. By 1900 it had become uncommonly used, and after that last use in the 30’s we created other options. Specifically referring it to the DOJ for charges, or filing civil lawsuits over it.

That’s why it only came up under Trump as a “last option” sort of thing. It would be an extraordinary act these days, and the possibility that it might be done had to do with the normal approaches being cut off. Not that it was faster, or better, or the way this is done.

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Sounds like lawmakers really don’t know what they are doing to me. Or they are simply trying to muck up the system.

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In what way?

We’re talking about stuff that came in and out between like 1820 and 1930. There doesn’t seem to be any serious suggestion that current lawmakers are even considering this.

ETA: I mean they should consider fixing it. Maybe clarify Inherent Consent, or create some other way for Congress to enforce this shit on their own. But that’s not gonna happen as part of enforcing a subpoena on Bannon.

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That’s what most people are reacting too. They have a complicated voting process to even issue a subpoena to force someone to show up. The perception is that that process should actually force someone to show up.

What we’re seeing is that when they don’t. It’s a complicated process (whichever one they use) to actually apply any force. With lots and lots and then even more delays between when the not showing up happens and when any action seems to take place.

There’s two different and distinct problems in the process too, beyond all the steps and time it takes.

First, Congress isn’t actually applying the force. They’re referring to the Justice department. So there’s the long delay to decide to refer, and then the delay once it gets there for Justice to act. Even if Congress isn’t going to have its own ability to enforce its own subpoena, the process of enforcement should be faster. In this example, Bannon isn’t fighting the enforcement action. The enforcement action hasn’t even started yet.

Second, that it’s a recommendation to the Justice department that they can decide to ignore. Especially a problem if the Justice department leaders like the person more than congress.

Combined, they make a congressional subpoena almost meaningless. Ideally, enforcement action and fighting that enforcement to show up should happen immediately after not showing up. Someone who wants to fight before showing up should have to actually fight showing up, and then fight the enforcement if they lose the first one.

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Criminal prosecutions for contempt haven’t been successful for decades either. The US congress is being shown to be a body that can simply be ignored. They have no subpeona power, they appear to have no power at all as long as Ted Cruz is willing to enact the veto given to every senator. This is part of the ongoing coup attempt, to prove that congress cannot do anything in order to justify and empower a coup. Do whatever it takes: If congress really has no power over people who just say “no” to it, then I guess that’s that, but maybe try.

I do believe that inherent contempt is the more powerful option to actually try to get Bannon to testify. A thing that hasn’t been tried in 90 years sounds better to me than a thing that has been tried unsuccessfully for 30. Whether or not that’s true, they should be doing both.

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Inherent Contempt doesn’t address any of that though.

It’s one of the reasons for the issue. Congress’s only pathway to directly enforce this, is a mess with no force behind it.

You’re not likely to “solve” the problems of votes and internal process in Congress either. As it is a fundamentally political body, built around voting and process.

What you’re talking about is fixing this specific process. Maybe creating a new one. Not an argument for using Inherent Contempt.

Why? What about it solves any of the issue?

The last time it was used the end result was the guy spent 10 days detained in a luxury hotel. He didn’t serve a day of it until after his court challenge wound its way through the Supreme Court. And in the end he had already destroyed the documents Congress had been seeking.

So why try this? Rather than trying a criminal charge, or civil case with significantly more weight behind it.

You can’t really do both simultaneously. But one of the things that came up in discussion on whether this might be necessary when dealing with Trump. Is that Congress might have to try the DOJ or the courts (maybe both) and fail first. In order to lay out a plausible legal argument for bringing back Inherent Contempt.

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So don’t do it like the last time. Lock them up before their court challenge is resolved. Say that as a co-equal branch of government the courts don’t have jurisdiction to tell you how you do your business and enforcing subpoenas is your business (there’s a supreme court ruling to this effect, the courts should only rule on whether the subpoena was lawfully issued). Have a meeting of the committee that never ends until Bannon testifies.

When someone is actively committing a bank robbery, you don’t say, “Oh well, I guess the police can investigate when it’s over.” If that’s actually the best congress can do then Bannon is right: they are powerless.

I’m confused by this. One is congress conducting it’s own business as a branch of government, the other is the executive branch enforcing a criminal law. They are wholly separate processes.

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They did. Filing a suit over habeas corpus got him out immediately.

A fine argument to make in court, defending yourselves from that suit. Otherwise it is just Congress refusing to engage with the courts or accept court orders or findings. That’s a super easy thing to pull off.

There’s that whole double jeopardy thing that comes from charging and potentially punishing people for identical actions at the federal level.

Like wise if I’m remembering it right the “do the DOJ first” theory rests on due process, there’s apparently a long standing precedent that says you have to exhaust normal and reasonable means and processes for this kind of shit before you try extreme ones. That’s also why you can’t issue a subpoena and in the same breath find some one violated it, you have give them an opportunity to respond.

Cause the thing is the courts don’t have a roll in telling Congress how to conduct it’s business internally. But they absolutely have a role in deciding if the actions taken through that process are legal to begin with. Which is how we ended up with Inherent Consent at all.

So again why?

Why get buried in a quagmire when you have a cooperative President and DOJ? Who have already complied with Congressional Subpoenas, already declined to defend Trump or his cronies. Already dismissed claims of executive privilege over anything to with Jan 6th. Are already investigating Jan 6th, and Bannon. Who are involved in Congress’s attempts to do the same.

Nothing about the current situation indicates they’d refuse to get involved to the benefit of Bannon and Trump.

So why go nuclear? And why the hell would you basically wing it by crafting a whole new process as you go?

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Contempt is not a punishment and is not subject to double jeopardy. Contempt of congress is not that different than contempt of court - it is contempt for a branch of government.

Because congress shouldn’t have to go begging to do it’s job. Trump’s administration proved that criminal referrals for contempt as a means of enforcing subpoenas means that congress cannot hold an administration to account. They have no mechanism even to have their questions answered.

The current approach is that when a person simply declares themselves to be more powerful than a branch of government, that branch of government gets to ask another branch of government if they wouldn’t mind doing something about it, then that second branch gets to go in front of the third branch and try to prove beyond a reasonable doubt that this person held the first branch in contempt. And what happens if they are convicted? Say they get prison time.

Suppose they simply decided not to show up for prison? What would happen then?

Would the courts refer them to the DOJ so the DOJ could do an investigation and then bring them to court and try to prove beyond a reasonable doubt that they defied a court order? If not, then why do it now? Unless the courts are actually a more powerful branch of government than congress, and a subpoena from a court is a more powerful document than a subpoena from congress.

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One that’s enforced by levying a criminal punishment, and holding a trial. Under inherent contempt or through the DOJ. Again this is not a hold them till they comply sort of contempt. Neither is every form of contempt within a court that sort of contempt.

I think they can make that happen by filing a civil lawsuit under the same statute.

How is that not a possibility with Inherent Contempt?

Hell most of the subpoenas Trump’s people have refused to comply with aren’t congressional subpoenas. They’re grand jury and court subpoenas.

The DOJ can’t even issue subpoenas without the involvement of the Judicial branch. They definitely have to ask another branch if they wouldn’t mind doing something about it. I guess they’re powerless?

Yes.

The US Marshals enforce these things for the Federal Courts.

They’re part of the DOJ.

One of the things they do is coordinate with other Federal Agencies and State and Local Law Enforcement to go get people who refuse to go to prison. And there are absolutely charges and hearings associated with that.

Nothing about Inherent Contempt means that’s not a possibility. It would probably make it more likely given the entire history of the thing seems to be pretty much people arguing it’s invalid and refusing to comply.

If Congress were to run with Inherent Contempt they would have to “go begging” to the courts just to validate it’s use.

They’d have to ask the DOJ, states and cities very nicely not to have a jurisdictional (or physical) stand off with Capital Police when they went to snap up Bannon.

It is.

In large part because Inherent Contempt is weak, pathways for enforcement for Congressional Subpoenas are insufficient. That isn’t solved by barreling into the messiest, “only in emergencies” method.

If your concern is the reassertion of norms and Congressional Power, I don’t think this what you’re looking for.

I don’t think this makes any of it come off more legitimate than Merrick Garland standing in public and saying “Congress has ordered me to do Y, so I must do it”. None of these powers carry any weight at all unless other branches, and other people accept and act as if they do.

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Obviously we’ve gone past any reasonable purpose in this discussion.

My understanding is that:

You do not think that a legislative body needs any authority of it’s own to enforce it’s own rules and procedures (or at least not some of it’s rules and procedures), I think they need that authority and should assert it.

Alternatively you think that’s a moot point because the US congress doesn’t have that authority even if they need it, and I think now, in the middle of an ongoing coup, is a good time for them to find out.

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Right?

It’s more than a little frustrating that there are still people willing to argue arcane niches of law that congress can or can’t employ IN THE MIDDLE OF A GOD DAMN COUP!!! If they can’t fucking get to the bottom on shit and hold people accountable, then what the fuck is the point of have a legal system in the first fucking place?

Marian Wright Edelman Feminism GIF by Women's History

Laws, rules, and procedures are things that humans made up to make things run smoothly. If that shit is getting in the way of us getting some proper justice, then shit needs to be changed.

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My contention is there’s no reason to believe inherent consent would work at all. None the less any faster than the thing that congress just did.

Like a mostly forgotten process, that hasn’t been used in a century?

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So we have the so-called “law and order party” members giving a pass to someone ignoring a lawful subpoena?

:thinking:

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Once again, we’re in deep shit if we’re going to let this hang up us getting to the bottom of what happened on the 6th, how deeply involved Trump and his cronies were, and ensure that it does not happen again. I think MOST of us would like congress to act in the quickest way possible, but also in a way that is the least likely to be challenged in the courts.

By “law and order” (of course) they mean white male supremacy, with a different set of laws for them than for the rest of us.

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Which is gonna be quicker and more likely to succeed? The thing with a clear process laid out in a law. Or the arcane process?

They’ve already sent the referral to the DOJ, even got 9 republicans to vote in favor. Vote happened around 5, news broke an hour or two ago.

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The media have been pre-reporting this for so long

Steve Bannon faces criminal charges over Jan. 6 panel snub, setting up a showdown over executive privilege

that it’s easy to miss the moment when it actually happens

House asks DOJ to criminally prosecute Trump adviser Steve Bannon for refusing to comply with Jan. 6 committee

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Exactly, that congress lacks the power to actually enforce it’s own rules and procedures, that when someone is flouting the will of congress now the only thing that can be done is hope for a criminal prosecution later.

You may be right, but I also find that a dire situation. Congress is supposed to hold the executive branch accountable, and they appear to be incapable of doing so.

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