At first glance, the case for enforcing the subpoena for Steve Bannon to testify before the Jan. 6 committee seems straightforward. But now, more than two weeks since the House made its referral to the Justice Department, people are starting to wonder what’s taking so long. (After all, some may recall, an indictment was handed up just eight days after the last similar referral from Congress to the Justice Department — the prosecution in 1983 of Rita Lavelle, the former head of the Environmental Protection Agency’s toxic waste programs. The government lost that case.)
Our system, for good and well-established reasons, doesn’t give the public a window inside the process while prosecutors are at work.
On his podcast one day before the insurrection, Bannon said: “All hell is going to break loose tomorrow. … So many people said, ‘Man, if I was in a revolution, I would be in Washington.’ Well, this is your time in history.”
So the House select committee investigating the events of Jan. 6 has good reason to take Bannon’s testimony. It sent him a subpoena in September. Bannon refused to testify or to provide subpoenaed documents, and his lawyer said former President Donald Trump might decide to argue executive privilege to seek to prevent Bannon from appearing.
On Oct. 21, Congress passed a resolution finding Bannon in contempt of Congress and referring him to the Justice Department for prosecution. The charge it referred is Section 192 of Title 2 of the U.S. Code, which makes it a misdemeanor, punishable by at least one month in custody and up to a year, for a person who fails to comply with a subpoena to testify or produce documents to Congress.
There’s an old saying prosecutors like to repeat to one another: If you shoot at the king, you’d best not miss. Roughly translated, that means don’t indict a suspect before your evidence is in place. The government bears the burden of proof beyond a reasonable doubt, the highest standard of proof we use in our legal system, and to meet that burden, the prosecution must have admissible evidence of guilt. Prosecutors can’t rely on what everyone thinks they know or what people believe. Ensuring they have evidence to establish every element of a crime, even in a matter that seems as self-proving as this one, takes time and effort.
Silence doesn’t mean inaction. Frustratingly, it means we don’t know what work is or isn’t in progress. Likely, we will learn about the outcome if the Justice Department either discloses an indictment or, perhaps, it advises Congress that it won’t take any action on its referral. Our system, for good and well-established reasons, doesn’t give the public a window inside the process while prosecutors are at work. Whether the system should change and provide more transparency may be up for future debate, but it won’t change for this investigation.
The basics of preparing to indict, including obtaining evidence the prosecution needs in an admissible form, can take time. Subpoenas have to be authorized, cut and served on people and entities from which prosecutors seek information. It takes time for subpoenaed materials to be returned to the grand jury. While there’s no way to know whether the Justice Department is using grand jury subpoenas to compile evidence in this case, it’s entirely possible. That process can add weeks before prosecutors have the essential evidence they need to indict.
Prosecutors typically provide defendants with discovery materials at or soon after arraignment on an indictment. This means they must have sufficient time, once their investigation is complete, to compile the evidence they must turn over in a form that can be released to defense counsel. Because the government has significant ethical obligations, including the requirement that it turn over exculpatory evidence, it’s important to have sufficient time to prepare.
For many, the well of trust in the Justice Department has run dry.
There are also legal issues that need to be resolved: Federal guidelines permit prosecutors to commence prosecution only if they believe that they can both obtain and sustain a conviction. That means they have sufficient evidence to convict at trial and to win on appeal. So they must evaluate potential defenses and other legal issues to satisfy the conclusion that a conviction can be affirmed.
Bannon’s actions so far suggest that he will offer executive privilege and his reliance on the advice of counsel that he shouldn’t testify as defenses for his failure to appear before Congress. Prosecutors can’t reject potential defenses merely out of disgust over the manner in which Bannon flouted the House’s subpoena. Although unlikely to succeed here, arguments must be thoroughly researched to develop the position the Justice Department will take at trial and on appeal. This is work that must be at least in progress and sufficiently far along to provide confidence in the affirmability of a conviction, before an indictment is sought. As former U.S. Attorney and FBI official Chuck Rosenberg told me, when it comes to evaluating potential defenses, “even if ultimately unavailing, it takes time.”
That is, like it or not, the state of play. Even with prosecutors and agents working at full speed, this process takes time. And with the new U.S. attorney for the District of Columbia having been sworn in only last Friday, he will need time to get his feet on the ground and his arms around the case while working on a plethora of other important matters, in addition to the Jan. 6 prosecutions, before any final decision can be made. Moreover, while Bannon’s situation seems simple on the surface, it’s impossible to know whether allegations of other criminal conduct by Bannon or other people needs to be investigated and evaluated for prosecution as part of this same matter. That could complicate matters. Because we live in a system that protects those under investigation in the event it’s ultimately determined that they didn’t engage in wrongdoing, we aren’t going to be privy tothe Justice Department’s conclusions until it acts. That is all to say that what appears to be delay by the Justice Department isn’t necessarily a problem. But we are at a low ebb of confidence in our institutions after the abuses of the Trump administration. At a time when many Americans are searching for signs that there are still reasons to believe that the rule of law can provide accountability and finding them lacking, they run straight into the fact that criminal investigations are conducted in secrecy. The Justice Department, even if it desired more transparency, faces restrictions, including ones that criminalize revealing details of a grand jury investigation. Justice Department officials are surely aware that the more delay mounts, the more criticism they’ll face. They’re also aware that no matter what their ultimate decision is, they will face opprobrium. That’s why it’s important that our legal system take the time to get things right, instead of acting quickly or with a political knee jerk. So as we wait, frustrated and concerned, we must remind ourselves that there are good reasons for prosecutors to take the time to do a thorough and thoughtful job. That we want a system of government in which the rule of law works, not one that responds to crowds that loudly chant “lock him up.” And that while it’s not easy to live through the struggle to restore a functioning democracy, the hard work and even the waiting are worth doing.
