Why Steve Bannon Should Be Freed

President Biden’s Justice Department is in court arguing for President Trump’s 2016 campaign chief executive and 2017 chief White House strategist, Steve Bannon, to be thrown in prison immediately.

Bannon has asked to remain free on bond while appealing Judge Carl Nichols’s ruling sentencing him to four months and a $6,500 fine.

For a politician such as Biden to use the power of the state to attempt to throw one of his predecessor’s top aides in prison is a marked departure from precedents around the peaceful transition of power. It smacks of vindictiveness and vengeance rather than charity-for-all magnanimity.

That’s especially so given that the underlying offense in Bannon’s case — failing to respond to a subpoena from a Democrat-run Congressional committee — is itself a political act rather than a crime of violence or property destruction.

There was plenty of violence and property destruction on January 6, 2021. That is certainly a legitimate topic for criminal investigation.

Bannon, however, isn’t charged with assault or vandalism. He is charged with failing to respond to Congress’s self-appointed investigation into the events of that day.

The Wall Street Journal brought my attention to this case in an editorial headlined “No Sympathy for Steve Bannon.” The Journal is characteristically fast to the news and admirably principled, contending that the contempt of Congress violation should be enforced consistently, whether it is against a Democratic IRS commissioner such as Lois Lerner spurning the inquiries of a Republican Congress, or against a Republican such as Bannon spurning the inquiries of a Democratic Congress.

The Journal concludes, “Mr. Bannon’s problem is he’d been out of the White House for more than three years by the time of the 2020 election and the Jan. 6 riot. If he were still immune from subpoena, Congress’s oversight power would be vanishingly weak.”

The sentence sent me to my copy of the Constitution, where I looked for a reference to Congress’s “oversight power.” It didn’t take long to find the section enumerating Congress’s powers — they were right there in Article I.

I didn’t see “oversight” there on a quick read, so I tried using the automated “find” function on an electronic version of the Constitution using my web browser. No dice. I tried again with a magnifying glass, then again with a microscope.

The House claims its oversight authority is “derived from its implied powers in the U.S. Constitution,” but the annotated Constitution (a product, itself, of the Congressional Research Service) warns:

“The power of investigation may properly be employed only ‘in aid of the legislative function.’ …Congress may not issue a subpoena for the purpose of law enforcement — that is, to ‘try’ someone before a committee for any ‘crime or wrongdoing,’ as such an action would intrude on powers ‘assigned under [the] Constitution to the Executive and the Judiciary.’”

It’s one thing for Congress to ask sitting executive branch officials to testify about appropriations requests, tax policy, the value of money, declarations of war — anything that relates to the enumerated powers. That aids legislative function, for sure.

It’s another thing for Congress to haul before an investigative panel some private citizen who, as the Journal itself observes, hasn’t been a U.S. government official for five years. The reason the Democrats want Bannon to testify is because of his connection to President Trump. It’s a political prosecution.

The Democrats want to argue that it’s justified as “oversight” while also denying Bannon the defense of executive privilege. Bannon’s defenders want to claim executive privilege while also denying that it’s oversight.

In this case, the judicial branch may not ultimately be needed to sort out the conflict between Congress, the Biden Justice Department, and the remnants of the 2017 Trump administration. The voters may get to it more quickly.

If Republicans take over the House, they’ll likely disband the January 6 committee, rendering Bannon’s subpoena, and the legal conflict over his need to comply with it, moot.

It would be a telling verdict from the electorate about whether it prefers Congress to be exercising its “oversight power” strongly against Steve Bannon or to be concentrating, instead, on the powers not “implied” but enumerated in the plain text of the Constitution.