Rare prosecution in Bannon contempt case signals shift by Biden DOJ

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Matt Whitaker: Steve Bannon indictment 'a serious abuse by the Department of Justice'

Former Acting Attorney General Matt Whitaker on Steve Bannon's indictment for contempt of Congress.

House Democrats are hoping that the Justice Department's indictment of Steve Bannon results in a conviction for contempt of Congress, but if it does it would be the first in decades.

In recent history, the DOJ has declined to even pursue such cases. The difficulty of obtaining convictions in these matters, as well as the political issues that can arise, have made cases very rare, and successful prosecutions even less common.

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The last time the Justice Department secured a conviction for contempt of Congress in federal court was back in the Watergate era, when Nixon adviser G. Gordon Liddy was convicted for refusing to answer questions and former Attorney General Richard Kleindienst pleaded guilty.

Before then, most contempt of Congress cases were related to the House Un-American Activities Committee's efforts against Communism.

Steve Bannon, left, former adviser to President Trump, and his attorney David Schoen, address the media after an appearance at the E. Barrett Prettyman Federal Courthouse on contempt of Congress charges for failing to comply with a subpoena from the committee investigating the Jan. 6 riot, on Monday, Nov. 15, 2021. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

More recent cases have been rare and unsuccessful. The closest one went to going anywhere was when Reagan administration EPA official Rita M. Lavelle was indicted in 1983 for not appearing before a House subcommittee. Lavelle was acquitted of the contempt charge but later convicted for lying to Congress. 

The Obama administration saw two officials referred to the DOJ by the House for contempt of Congress. Former IRS official Lois Lerner was accused of contempt for not appearing before the House Oversight Committee to address allegations that she improperly targeted conservative groups for investigation.

Obama Attorney General Eric Holder was also referred for contempt of Congress. The DOJ opted not to pursue cases against him or Lerner.

Steve Bannon, former adviser to President Trump, waves to members of the media as he departs federal court in Washington, D.C., on Monday, Nov. 15, 2021. (Craig Hudson/Bloomberg via Getty Images)

Similarly, the DOJ did not bring cases against Harriet Miers and Josh Bolten, officials in President George W. Bush's administration, after they were accused of disobeying a House Judiciary Committee subpoena.

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According to Fox News contributor and former House Oversight Committee chairman Jason Chaffetz, R-Utah, House subpoenas "should not be optional" if Congress is really an equal branch of government.

"Subpoenas are only as strong as your ability to enforce them," Chaffetz said.

At the same time, Chaffetz believes that the Justice Department's decision to prosecute Bannon is more politically motivated than based on a desire to uphold congressional power.

"This is a very compliant and politically aligned Department of Justice," Chaffetz said.

Attorney General Merrick Garland steps away from the podium after speaking at a news conference at the Justice Department in Washington, Monday, Nov. 8, 2021. (AP Photo/Andrew Harnik)

In comparison, the Justice Department was not controlled by the same party as the House in the Holder, Lerner, Miers and Bolten cases.

The current DOJ, headed by Attorney General Merrick Garland, is too "politically charged," Chaffetz said.

"They still have Trump Derangement Syndrome," he added.

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Chaffetz noted that when he was in Congress during the time of the Lerner and Holder cases, it took the DOJ a long time to even reach a decision not to prosecute those cases. With Bannon, he said, it "acted in record time."

While Chaffetz believes that House subpoenas should be enforced, he warned that Democrats should "beware" of taking politically motivated action because "it's only a matter of time" before Republicans are back in charge and able to issue subpoenas of their own.