There are no current and public signs that Garland is feeling pressure to act quickly. In fact, a deliberative process would comply with his effort to shield the department from politicization after Trump weaponized it to protect himself during a scandal-plagued presidency and in his effort to steal the 2020 election. But that also means the new batch of six Trump confidants, who have been subpoenaed for their alleged role in amplifying Trump’s lie about election fraud or abetting his coup attempt earlier this year, have reason to replicate the obstruction, at least for now. And even if Bannon is prosecuted, a long process of court cases and appeals could bog down the committee in a legal nightmare.
“If Merrick Garland does not prosecute Steve Bannon, all these other witnesses … they are going to have no deterrent either and they are going to see it as a free-for-all to do what they will. So there is a lot riding on what Merrick Garland decides to do here,” CNN legal analyst Elie Honig said.
Garland refused to discuss his deliberations in an unrelated media appearance Monday. The roughly two-week gap after Bannon’s contempt citation is hardly a lifetime in legal terms, however, so it would be unwise to read anything into it yet.
California Democratic Rep. Adam Schiff, a member of the House select committee, said on CNN on Monday evening that the Justice Department needed time to study the case and precedent but said acting to enforce congressional subpoenas was crucial.
“If the Justice Department doesn’t hold Steve Bannon accountable, it only lends credence to the idea that some people are above the law and that cannot be true in this country,” Schiff said on “Cuomo Prime Time.”
But like Bannon, the six potential witnesses subpoenaed on Monday were not serving government officials at the time of the insurrection so should have no protection under the doctrine that allows presidents to revive confidential advice from their official advisers. The extent to which the custom applies to ex-presidents is also a gray area. And Biden, with whom final adjudications of privilege now rest given his constitutional role, has declined to comply with Trump’s bid for the shielding of hundreds of White House documents.
Trump’s latest delaying tactic
But making broad, and what many analysts see as frivolous, executive privilege assertions could allow the former President to frustrate the committee and hamper the search for truth for months. That would have grave implications for the US political system and the separation of powers, said former Ohio Gov. John Kasich, who is also a former Republican member of Congress.
“If nothing happens, if you can just say, ‘I don’t really care what you think,’ I think you lose your power and I think that Congress needs to be protective of that power,” Kasich told CNN’s Wolf Blitzer on “The Situation Room.”
“Now it’s about January 6, but how many other things will come down the road and people will say, ‘I don’t have to show up?'”
The committee said Monday the six new subpoenas targeted Trump associates who helped perpetuate the lie that the 2020 election was stolen.
“The Select Committee needs to know every detail about their efforts to overturn the election, including who they were talking to in the White House and in Congress, what connections they had with rallies that escalated into a riot, and who paid for it all,” chairman Bennie Thompson, a Mississippi Democrat, said in a statement.
The committee is under pressure to produce a legal argument that it has a legislative purpose for its efforts, and some members have spoken of drafting new laws that could thwart similar attempts to the one laid out by Eastman. In the end, Pence concluded he had no power to overrule the will of voters who had chosen Biden — much to Trump’s fury.
The committee said in the statement that it wanted to interview Flynn about a December 2020 meeting in the Oval Office during which “participants discussed seizing voting machines, declaring a national emergency, invoking certain national security emergency powers, and continuing to spread the false message that the November 2020 election had been tainted by widespread fraud.” According to the committee, Flynn also gave an interview to Newsmax TV and spoke about “seizing voting machines, foreign influence in the election, and the purported precedent for deploying military troops and declaring martial law to ‘rerun’ the election.”
The broad scope of Monday’s subpoenas confirms that the committee is looking beyond the events of January 6 and is delving deep into Trump’s longer-term plotting to overthrow the election. But the chances of all those subpoenaed eventually testifying to the committee seem somewhat unlikely — whatever happens to Bannon — unless the Justice Department is willing to wage multiple cases against ex-Trump officials who all refuse to cooperate.
In that sense, the panel — which has already interviewed 150 witnesses behind closed doors — may be using the subpoenas to underscore the broad nature of suspicious activity in Trump’s orbit.