Trump’s Inaction During the Capitol Riot as a Possible Crime

Representative Liz Cheney (R-Wyo), the vice-chair of the House Select Committee investigating the January 6, 2021 Capitol riot, recently raised some eyebrows with this question: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?” The language of Cheney’s question tracks that of the obstruction of justice statute prosecutors have used to charge more than 200 Capitol rioters. Her suggestion that Trump’s failure to act might make him guilty of obstruction was particularly intriguing.

In a subsequent interview with the Washington Post, Committee Chair Bennie Thompson (D-Miss) expanded on the idea of Trump’s criminal liability based on his inaction. Thompson said the committee was exploring why, once the assault on the Capitol began, it took Trump more than three hours to ask his supporters to stand down. He said Trump’s “dereliction of duty” in failing to try to stop the riot could be a factor in whether the committee refers possible criminal charges against Trump to the Department of Justice.

These comments have led to some debate over whether Trump’s inaction during the riot, standing alone, could be a crime. I think the answer is: maybe. But it would be a novel and controversial criminal theory. The Department of Justice is unlikely to rely upon such a theory for something as consequential as the prosecution of a former president.

In any event, the theory is unnecessary. As I’ll discuss at the end of this post, there are plenty of potential crimes to investigate based on Trump’s actions, rather than his inaction. Trump’s failure to try to stop the riot best serves not as a stand-alone crime but as evidence of his intent for other potential charges.

Trump addressing the "Save America'" rally
Trump addressing the “Save America” rally before the riot

Trump’s Inaction on January 6

The theory that Trump’s inaction might be criminal focuses on his behavior once the assault on the Capitol began. Trump spoke that day for more than an hour to the unruly crowd at a rally outside the White House. He repeated his lies about the election being stolen, urging the crowd to march to the Capitol and “fight like hell” to save the country. He then retreated inside the White House and watched developments on television, while the crowd followed his command and headed to the Capitol.

The mob first breached police barriers outside the Capitol around 1:00 pm, and first broke into the building around 2:00 pm. For more than three hours, Trump – who was, let’s remember, still the president of the United States — did nothing to respond as his supporters assaulted police officers, broke windows and doors, desecrated the halls of Congress, and called out violent threats to Mike Pence, Nancy Pelosi, and others. Members of Congress who were under attack called Trump and his staff, pleading with him to call off the mob. Fox News hosts texted Trump’s chief of staff Mark Meadows, urging Trump to ask the rioters to leave the Capitol. Trump’s children also reportedly tried to persuade their father to try to call off the attack.

In response to these appeals, the president did nothing. According to witnesses, Trump appeared delighted when he saw the attack unfolding on television, believing that the mob was fighting for him. As the riot continued, Trump placed phone calls to Senators, still trying to persuade them to reject the certified election results.

Finally, his staff convinced Trump to release a video asking the rioters to leave the Capitol. They had to do several takes because he repeatedly veered off script and failed to ask the rioters to stop the attack. The statement the White House finally released did ask the rioters to leave. But Trump also said he understood their anger because, “We had an election that was stolen from us.” He concluded with, “We love you, you’re very special.”

Criminal Liability Based on Inaction

Could Trump’s failure to act for more than three hours be a crime? As a rule, criminal liability is based on action, not inaction. If I see a robbery taking place and do nothing to stop it, that does not make me criminally responsible for the robbery, even if I could have easily and safely prevented it. If I see an unconscious man lying on the railroad tracks and walk away as I hear a train whistle in the distance, I am not criminally liable for homicide. My behavior may be morally reprehensible, but my inaction does not make me guilty of a crime.  

But there is an exception to this rule if a person was under a legal duty to act. In rare cases, criminal liability can result from a failure to act in knowing violation of such a duty. It must be a clear legal duty, not just a moral or ethical one.

The duty to act can come from different sources. It can be based on a trusted or personal relationship, such as the duty of a parent to care for a child or the duty of a ship’s captain to protect the crew. Sometimes the duty can arise from a specific statute, such as laws making it a crime to fail to file your taxes. It may be based on contract; a lifeguard who willfully allows a swimmer to drown may be criminally liable for that failure to act. And if you create the situation that puts another person in danger, you may then have a legal duty to help that person avoid injury.

Trump sat by and gleefully watched the riot unfold but did nothing to intervene. That was an unconscionable violation of his responsibility as president. But to argue that his failure to act might actually be criminal, we would have to identify a legal duty on which to base his liability.

The U.S. Constitution

The Duty from the Take Care Clause

Some commentators have suggested that Trump had a duty to try to stop the riot based on the “Take Care” clause of the U.S. Constitution. Article II, Sec. 3 of the Constitution provides that the president “shall take Care that the Laws be faithfully executed.” If this obligation means anything, these commentators argue, it should include a duty to act when the Capitol is being attacked and democracy itself is under assault. The argument would be that Trump had a legal duty to act to protect the institutions of democracy and the “faithful execution” of the Electoral Count Act, the law governing Congress’s certification of the winner of the election.

Legal duties can arise not only from statutes but also from common law or other legal obligations. And there is some precedent for using Constitutional obligations to create a legal duty to act. For example, prison guards who stood by and did nothing to intervene while other guards assaulted a prisoner have been found guilty for their failure to act based, at least in part, on the Eighth Amendment’s prohibition of cruel and unusual punishment.

But not surprisingly, there is no precedent for using the Take Care clause to create a presidential legal duty that would support criminal liability. I think taking that step would be problematic. The constitutional obligation to faithfully execute the laws applies to essentially everything a president does; it’s basically the president’s job description. That generic command does not seem sufficiently targeted to give rise to a specific duty to act that would support criminal liability.

It’s easy to see how such a doctrine could be turned into a political weapon. For example, a president has a duty to see that laws related to disaster relief are faithfully executed. Suppose a hurricane strikes a state led by a governor who has been critical of the president. The president fails to authorize federal disaster aid in a timely way, and people die. That’s certainly a violation of the president’s duties, but could a future administration actually prosecute the president for homicide based on his failure to act? It’s true prosecutors would still have to prove criminal intent. But it would be far too easy for political opponents to turn virtually any presidential inaction into an alleged violation of the Take Care clause justifying prosecution. There’s no clear limiting principle.

Another difficult issue, at least in this case, would be causation. If the water conditions mean a lifeguard probably could not have saved a foundering swimmer, the lifeguard will not be responsible for failing to try. Similarly, prosecutors presumably would have to prove that Trump’s intervention would have been effective, so that his failure to act caused at least some of the harm. It’s not clear this is true.

For example, in the recent indictment of the Oath Keepers for seditious conspiracy, their leader Stewart Rhodes is quoted as messaging his followers, “All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.” A riot has a life of its own, and by the time the mob breached the Capitol barriers things may have been beyond even Trump’s control.

It’s true that a number of people on that day apparently believed Trump had the power to call off the attack. But it’s not clear the mob would have listened. This is a far cry from stopping one assault or pulling one overboard sailor from the sea. He absolutely should have tried, of course. But in a criminal case prosecutors would have to prove beyond a reasonable doubt that Trump’s earlier intervention would have made a difference. I’m not sure they could do that.

In sum, although the argument for omission liability based on the Take Care clause has some intuitive appeal, I don’t love it as a matter of criminal law. And I think DOJ would be extremely unlikely to employ such a novel theory.

Creation of the Danger   

A better argument for Trump’s liability for failure to act might be based on the rule that one who creates a situation that puts another in danger may then have a duty to help that person avoid harm. The classic example is a defendant who deliberately sets a building on fire and then fails to help people trying to escape the flames. Here the argument would be that Trump was responsible for causing the riot, and having caused it, he had a legal duty to try to stop it.

This may be a better theory for omission liability. But it does require the prosecution to prove, in the first instance, that Trump intended to cause the riot. And if the government can prove that, then it can potentially charge Trump for a number of direct criminal acts, including for aiding and abetting obstruction of justice and seditious conspiracy. At that point, there is little need for the omission theory.

Some have suggested Trump would have a legal duty to intervene even if he did not intend for the riot to happen. But basing criminal liability (as opposed to moral liability) on a failure to act in response to a dangerous condition the defendant did not intend to create would be extremely aggressive. The first criminal prosecution of a former U.S. president is not the place where DOJ is likely to roll out such a theory.

Former president Donald Trump

The Best Use of Evidence of Trump’s Inaction

A former president clearly is subject to criminal prosecution for affirmative criminal acts while in office. But for dereliction of duty and egregious presidential failures to act, the usual remedy is impeachment and removal from office, or defeat in the next election. Trump was, of course, impeached for his role in the Capitol riot, although he was not convicted.

The evidence of Trump’s failure to act is indeed damning. But it will be most useful not as the basis for a criminal charge based on that omission, but as evidence of his intent that supports his prosecution for affirmative criminal acts.

In any prosecution of Trump for the Capitol riot, proving his intent would be the key. Did he really intend for his followers to storm the Capitol building following his incendiary speech? Did he intend to obstruct the Congressional proceeding that would certify Joe Biden as the winner of the election, whether via the assault, corrupt persuasion of Mike Pence, or by other means? If the government can’t prove corrupt intent on Trump’s part, there is no criminal case.

To prove intent, circumstantial evidence is often the key. Intent can be inferred based on a defendant’s actions. Here, as his followers stormed the Capitol, Trump watched it happen on television and appeared to be delighted. He resisted appeals from multiple sources to try to stop it. Even when he finally filmed his video message, he offered words of encouragement to the rioters and told them he loved them.

These are not the actions of a man who was misunderstood by his followers and is horrified by what they did. If the assault on the Capitol was not what Trump intended, any rational person would expect him to act immediately to try to stop it. That he failed to do so is evidence that he supported what was happening.

Federal District Court Judge Amit Mehta made a similar point recently during oral arguments on a motion to dismiss a civil lawsuit for damages filed against Trump by members of Congress and former Capitol police officers. “What do I do about the fact the president didn’t denounce the conduct immediately?” he wondered. “If my words had been misconstrued … and they led to violence, wouldn’t somebody, the reasonable person, just come out and say, wait a second, stop? . . . Isn’t that . . . enough to at least plausibly infer that the president agreed with the conduct of the people that were inside the Capitol that day?” 

This inference would apply equally in a criminal case. The facts surrounding the riot would not be in dispute; the entire case would come down to Trump’s intent and whether he is responsible. And in such a case, as Judge Mehta observed, a jury could reasonably conclude that if the riot was not what Trump wanted, he would have moved aggressively to try to stop it.

Stewart Rhodes, found of the Oath Keepers
Stewart Rhodes, Founder of the Oath Keepers

The Affirmative Crimes at Issue

So what are the most likely crimes by Trump that DOJ could be investigating based on his actions, rather than his inaction?

Obstruction of Justice, 18 U.S.C. § 1512 – This is the crime of corruptly attempting to obstruct the Congressional proceeding to certify the election. I wrote about that offense here. A number of federal district court judges have now upheld the charge and ruled that it does apply to the Capitol rioters. The maximum penalty is twenty years in prison.

Although not present during the riot itself, Trump could be found guilty of obstruction if the government established that he aided and abetted the assault on the Capitol by inciting or encouraging the rioters or by taking actions that helped them, such as withholding the deployment of additional law enforcement officers. Conspiracy to violate section 1512 carries the same 20-year penalty.

Seditious Conspiracy, 18 U.S.C. § 2384 — This statute makes it a crime for two or more persons to conspire to oppose the U.S. government by force, or “by force to prevent, hinder, or delay the execution of any law of the United States.” It provides a penalty of up to twenty years in prison.

On January 12, 2022 the Department of Justice indicted eleven members of the extremist group the Oath Keepers, including their founder Stewart Rhodes, for seditious conspiracy, obstruction, and other charges. This was the first time DOJ had used that charge in a January 6 prosecution.

Rebellion or Insurrection, 18 U.S.C. § 2383 — Provides a ten-year penalty for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”  It also provides for disqualification from holding public office in the future. Trump might be vulnerable here if any of his actions could be considered giving aid and comfort to the rioters.

Conspiracy to Commit an Offense, 18 U.S.C. § 371 This would apply if the government established that Trump entered into an agreement with others to violate any of the above statutes with the intent to further that criminal objective.

One benefit of a conspiracy charge is that the crime is the agreement itself. It does not require a co-conspirator to commit any other crime. So, for example, Trump could be liable for conspiring to obstruct the Congressional proceeding to certify the election even though he never set foot in the Capitol himself.

Conspiracy to Defraud the U.S., 18 U.S.C. § 371 — A different conspiracy theory prohibits conspiracies to defraud the United States, even in the absence of an agreement to commit a particular crime. This portion of the statute is violated if a defendant conspires to “impair, obstruct, or defeat” a lawful government function. This theory was used by special counsel Robert Mueller to indict the Russians who engaged in a social media campaign to influence the 2016 presidential election: Mueller indicted them for conspiring to impair the lawful functions of the Federal Election Commission, Department of State, and Department of Justice. Here, prosecutors could charge a conspiracy to obstruct or impede the lawful Congressional function of certifying the election results.

Conclusion: An Unlikely and Unnecessary Theory

Trump’s inaction during the riot is appalling. But dereliction of duty, standing alone, is not usually a crime. And prosecutors trying to turn that inaction into a crime would face a number of significant legal hurdles.

The best use of the evidence of Trump’s inaction is to prove his intent to commit affirmative criminal acts. There are plenty of potential crimes to choose from. That doesn’t mean a criminal case can be made, of course. But a case based on Trump’s actions stands a far better chance than a case based on his failure to act.

Like this post? Click here to join the Sidebars mailing list

The Steve Bannon Indictment: Charges and Potential Defenses

Former Trump advisor and right-wing provocateur Steve Bannon was indicted last week on two counts of contempt of Congress. The charges arise from his refusal to honor a subpoena from the House committee investigating the January 6 Capitol riot. On the courthouse steps Bannon was defiant, vowing to fight and to make the case the “misdemeanor from hell” for the government.

Despite the tough talk, Bannon is likely headed to jail. That may not mean that he ends up testifying. But the Bannon indictment should make an impression on others who might be similarly inclined to stonewall the investigation. That’s good news for anyone who would like to get to the bottom of what happened on January 6.

Steve Bannon

Steve Bannon

Steve Bannon, a political strategist and media executive, is a well-known and controversial figure from the Trump years. He was formerly the head of Breitbart News, a far-right website. He worked on Trump’s campaign in 2016, where among other things he was involved with Roger Stone in trying to gather information about the Democratic emails stolen by the Russians and released by Wikileaks. He served for about seven months in 2017 as Chief Strategist and Senior Counselor to president Trump. Bannon left the White House in 2017 and has not served in the government since. Currently he hosts a popular right-wing podcast, “The War Room,” which CNN has described as a “dangerous fantasyland of election lies.”

Bannon was involved in the “stop the steal” movement following the 2020 election. He reportedly was present in the Willard Hotel in the days leading up to January 6, as part of the “war room” that included Rudy Giuliani and others plotting how Trump might seek to overturn the election results. The night before the riot, Bannon said on his podcast that “all hell [was] going to break loose” the next day.

The House Committee Subpoena and Bannon’s Response

The U.S. House of Representatives has established a Select Committee to investigate the Capitol riot. That investigation includes exploring the facts and circumstances that led up to the attack and who was involved in helping to organize the events of that day. In recent weeks the Committee has issued a flurry of subpoenas to former Trump officials and allies who were involved in the efforts to overturn the election that culminated in the January 6 riot.

On September 23, the Committee issued a subpoena to Bannon for both testimony and documents. It cited his activities in the days leading up to the riot as evidence that he is likely to have information relevant to the Committee’s investigation. The subpoena required him to produce documents and records of communications in seventeen categories by October 7 and to appear for a deposition on October 14.

Bannon failed to produce the required documents or otherwise respond to the subpoena by the October 7 deadline. Late that day, his attorney sent a letter to the Committee saying that former president Trump was claiming the documents were privileged and had instructed Bannon not to comply. The Committee responded, pointing out that Trump had not formally asserted any privileges, that Bannon was a private citizen at the time of these events, and that in any event Bannon was still required to supply a list of responsive documents that he claimed were privileged and could not simply ignore the subpoena.

On October 13, the night before his scheduled deposition, Bannon’s attorney again wrote to the Committee, stating: “Until such time as you reach an agreement with President Trump or receive a court ruling as to the extent, scope and application of the executive privilege, in order to preserve the claim of executive and other privileges, Mr. Bannon will not be producing documents or testifying.”

Based on Bannon’s defiance of the subpoena, the Committee recommended that the full House vote to find him in contempt of Congress. The House approved a contempt resolution on October 21 and referred that resolution to the Department of Justice. On November 12, the grand jury returned its indictment.

The first page of the Bannon indictment

The Charges in the Steve Bannon Indictment

Bannon was indicted on two counts of Title 2, United States Code, Section 192, which provides:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

A companion statute, section 194, provides that if the House or Senate votes to find a witness in contempt it shall refer the case to the appropriate U.S. Attorney (which ordinarily will be the U.S. Attorney for the District of Columbia), “whose duty it shall be to bring the matter before the grand jury for its action.”

As I’ve written here before, this crime is rarely prosecuted and the statute has been largely toothless. Most cases have involved officials of an administration controlled by one party invoking executive privilege and declining to provide documents or testify before a congressional committee controlled by the other party. When Congress then votes to find the witness in contempt and refers the matter to the Department of Justice, it is essentially asking the administration to prosecute one of its own for following the president’s instructions. Not surprisingly, that doesn’t happen.

Administrations of both parties have taken the position that, despite the statute’s “duty” language, prosecutors still retain the discretion to decide whether to pursue the case. And the Department of Justice Office of Legal Counsel has opined that it would violate the separation of powers for an executive branch official to be charged with contempt for refusing to honor a Congressional subpoena based on a claim of executive privilege.

But Bannon’s case is different: he is not an official within the administration that currently controls the executive branch. And at the time of the events under investigation Bannon was a private citizen, not a member of the Trump administration. The separation of powers issues that have resulted in past cases not being pursued are therefore not present in his case. That’s a big reason why he ended up being the first person in decades to be charged with this crime.

Steve Bannon with former president Trump
Bannon with Donald Trump

Bannon’s Possible Defenses – Or Lack Thereof

There doesn’t appear to be any doubt that the subpoena was lawfully authorized, Bannon received it, and he refused to comply. So his only possible defense is that he had some legal privilege that excused his non-compliance.

An initial problem for any Bannon defense based on privilege is that he completely failed to show up or to produce a privilege log of documents that he was withholding. If you’re subpoenaed and you think you have the right to assert a privilege, that doesn’t mean you simply get to ignore the subpoena. Typically you still need to show up, and then you can assert the privilege — question by question or document by document, if necessary.

Past administration officials who were referred for contempt of Congress, such as former attorney general Eric Holder, generally at least showed up to testify – often voluntarily, without a subpoena. The disputes arose when they asserted executive privilege over particular questions or documents. But they didn’t just entirely blow off the Congress and fail to show up at all.

Although Trump, when president, tried to claim that his senior officials were absolutely immune from testifying before Congress and did not even need to respond to a subpoena, that argument was rejected by the courts. And in any event, at the time of these events Bannon was not a member of the administration.

Regardless of the merits of any potential privilege claims, therefore, Bannon is going to have a tough time arguing that it allowed him to ignore the subpoena completely.

Executive Privilege

It appears Bannon’s primary defense will be that the documents and testimony sought by the subpoena are protected by executive privilege. That was the claim made in the letters from his attorney, who said Trump had instructed Bannon not to comply.

There are several problems with this potential defense. First, executive privilege can only be asserted by the president, and Trump has made no formal assertion of privilege. And because he is not the current president, it’s not clear that he could. That’s an issue currently being tested Trump’s lawsuit over a request from the committee to the White House for records related to January 6, where Trump is trying to assert executive privilege even though president Biden has agreed to release the records.

Second, although the scope of executive privilege is notoriously murky, it exists to encourage free and frank communication between a president and his or her advisors. That generally means those involved in the communications must have been part of the executive branch. But at the time of the events under investigation here, Bannon was a private citizen who had not worked in the White House for three years.

Third, the executive privilege exists to assist the president in the execution of his official duties. The allegation here is that any communications were not in furtherance of legitimate executive actions but were part of an attempt to overturn the lawful election. Just as the attorney-client privilege gives way if the communications are in furtherance of a crime or fraud, any claim of executive privilege should give way if the communications in question were in furtherance of an attempt to undermine democracy.

And finally, even if there were a colorable claim of executive privilege as to some particular questions or documents, there’s no chance that claim could apply to everything sought by the subpoena. A great deal of Bannon’s documents and communications undoubtedly involve his interactions with other private individuals, potentially including organizers and participants in the events of January 6. He can’t just say “executive privilege” and refuse to respond to anything at all – he would need to identify the particular documents or questions allegedly covered by the privilege.

Advice of Counsel and the Definition of Willful

Another key defense Bannon may try to raise is advice of counsel. He was working with an attorney, who communicated to the Committee on his behalf. He may try to defend his failure to honor the subpoena by claiming that his attorney advised him this was the proper way to proceed.

Under some circumstances, advice of counsel can be a defense to a criminal charge. It depends on the state of mind that the charge requires. Generally people are criminally responsible for the consequences of their intentional actions, and as the old saying goes, “ignorance of the law is no excuse.” But some statutes require the government to prove that a criminal defendant acted not just knowingly and intentionally but with an evil intent or in deliberate violation of a known legal duty. For crimes with this heightened intent requirement, a defendant may claim that a good-faith reliance on the advice of counsel demonstrates he lacked that intent.

In the context of the contempt of Congress statute, this will come down to the definition of “willful.” The statute requires the government to prove that the defendant “willfully” failed to comply with the subpoena. “Willful” is a confusing term in criminal law, because courts have held that its meaning varies from statute to statute. In some complex areas such as tax or securities crimes, courts have held that “willful” means the defendant acted in deliberate violation of a known legal duty. But for other crimes, the requirement that the defendant acted “willfully” simply means he acted deliberately and intentionally.

If “willful” in section 192 means the government must prove that Bannon acted in violation of a known legal duty, then he could present a defense that his attorney told him his actions were lawful. But unfortunately for Bannon, that argument is not likely to prevail. Way back in 1961, in a case called Licavoli v. United States, the U.S. Court of Appeals for the D.C. Circuit held that “willful” in this statute means simply that the defendant acted deliberately and intentionally. Violating a known legal duty, or evil motive, is not an element of the offense. The requirement of willfulness, the court held, simply distinguishes a deliberate and intentional failure to comply with a subpoena from a failure that might result from other reasons – for example, the witness has a car accident on the way to the hearing and ends up not appearing.

Other courts have also rejected an advice of counsel defense when it comes to contempt charges. They reason that allowing such a defense would substantially undermine the contempt power because a party in any proceeding could simply disregard court orders and later say “my lawyer told me it was OK.”

Another interesting wrinkle to this potential defense is that if Bannon were to try to claim he acted on the advice of counsel, that would require him to waive his attorney-client privilege concerning any communications with his lawyer regarding the subpoena. That might be interesting – and might not be something Bannon is willing to do.

But it shouldn’t come to that. If Bannon tries to raise an advice of counsel defense, it should be rejected. The judge should not allow him to argue it or allow that defense to go to the jury.

Fifth Amendment

Although he has not formally asserted it yet, it’s entirely possible that Bannon has a 5th Amendment privilege not to testify about the January 6 events because that testimony might incriminate him. That may mean that ultimately he never will end up testifying before the Committee.

But once again, that doesn’t excuse a total failure to comply. Once he was subpoenaed, unless he was excused he was obligated to show up and assert the privilege. So even if he might have been able to “take the Fifth” before the Committee, that will not be a defense to the contempt charges for simply ignoring the subpoena altogether.

The same is true when it comes to the documents. The contents of documents are not shielded by the 5th amendment. Under some limited circumstances a witness may take the 5th when it comes to producing documents if the act of turning them over might itself be incriminating because it means the witness is admitting he has them. But this “act of production” privilege is relatively narrow – and in any event, Bannon did not claim any such privilege. He couldn’t defend against the contempt charge by trying to claim it now.

The Likely Outcome

This criminal prosecution will not result in Bannon being compelled to testify. As I explained in this earlier post, the criminal process is to punish, not compel. If the Committee wants to try to compel his testimony it would need to pursue a civil case (or, less likely, inherent contempt). And since Bannon probably has a 5th amendment privilege anyway, they might decide it’s not worth it.

Bannon doesn’t have much of a leg to stand on in this case. I expect he will be convicted and will do some jail time (the statute requires a minimum of at least one month on each charge). The question is whether he really cares. David Frum in the Atlantic wrote a good piece about how, for Bannon, this is really a political proceeding, not a legal one. It will be a protest trial, like the trial of the Chicago Seven.

Bannon will use this prosecution to build his brand within Trump world and portray himself as a victim and martyr. You can’t buy that kind of publicity. He may not mind doing a few months in prison if it will make him a MAGA hero. And in the process he will do everything possible to make a lot of noise, get a lot of attention, and try to dirty up everyone on the government side.

More hopeful is the deterrent effect that his prosecution might have on others. There are some who have been subpoenaed – including former White House Chief of Staff Mark Meadows and former senior DOJ official Jeffrey Clark – who may be a lot more reluctant to have a criminal conviction on their records, much less to serve jail time. Bannon’s indictment should send a signal to those witnesses that they need to think twice before defying a Congressional subpoena.

Like this post? Click here to join the Sidebars mailing list.