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Steve Bannon is on trial for two counts of contempt.

  1. because he refused to comply with a subpoena to testify before the Jan 6th Select committee.

  2. because he refused to comply with a subpoena to hand over certain documents to the Jan 6th Select Committee.

The Youtube channel Farron Balanced has offered a commentary on the trial. According to host Farron Cousins, if he is found guilty, then he avoids having to hand over the documents. The theory is that if he is sent to prison they can't do anything more. He has been punished for his contempt, and they can't do anything if he continues to refuse to hand over the documents.

Is this legally correct? Can't they issue another subpoena? And if he doesn't comply, that's a separate crime, for which he can be tried and punished again? Couldn't this happen indefinitely?

https://youtu.be/BTJ2PsF8Eq8?t=275

Pete
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Congress could probably have sought to hold Bannon in civil contempt (which can incarcerate or fine him per day him indefinitely until he complies) and could probably seek relief in the form of a search warrant to be executed by third-party law enforcement, in addition to the criminal contempt remedy it is currently pursuing against Bannon.

Civil contempt is actually much more widely used than criminal contempt (punishing someone for a past violation of a legal obligation) in court cases. I don't know if Congress has failed to utilize it from a tactical litigation choice, or because it isn't available as a remedy for contempt of Congress.

A search warrant is not normally something that Congress would normally use, and the more common approach would be for Congress to make a criminal referral to the Department of Justice which would then execute the search warrant in connection with a crime other than failure to deliver documents, that is being investigated.

But a judge could probably order a search warrant as a remedy in this case where the criminal contempt does not provide a full remedy to Bannon's non-compliance. Remedies for contempt convictions can be fairly flexible compared to ordinary offenses.

A conviction for criminal contempt, if obtained, would more or less conclusively provide a probable cause basis for issuance of one, so there is no constitutional impediment to this remedy. Perhaps a search warrant could even be part of the penalty imposed pursuant to the criminal conviction.

This situation doesn't come up very often, so there isn't a lot of law directly on point.

ohwilleke
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I'm not sure if you are asking this from a legal standpoint or a practical one, so I'll answer both.

Legally, he must comply with the subpoena. If he does not comply with that obligation, there are a number of legal remedies including fines and incarceration. (I'm not sure what remedies are available to Congress specifically.)

Practically, he can withhold the documents indefinitely so long as he is willing to endure the remedies levied for not complying.

Michael
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So, here is a similar case — except this is about a lawyer withholding information protected by attorney-client privilege — where the court held Esq. Dozinger pretty much indefinitely (beyond the statutorily provided time period) to produce his computer.

https://www.nytimes.com/2021/10/27/business/energy-environment/steven-donziger-chevron.html

Then it became an international scandal of the U.S..

In short, there is nothing above the U.S. judiciary with jurisdiction the United States acknowledges where Banon could seek appeal or remedy. But since SCOTUS is also Trump’s people (twice as much as it is not), he probably would be let go soon as the case reached the Supreme Court or some injunction was sought extraordinarily even before any previous appeals.

Congress would probably not have the power for any incarceration in the first place — they would need a court to act on the contempt.

kisspuska
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