Steve Bannon - Caricature
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By Joel D. Joseph (Mr. Joseph is an attorney and author of 18 books on the law)
Steve Bannon, former advisor to Donald Trump, ignored a subpoena from the House of Representatives January 6th Committee. The Committee is investigating the attempted coup d'etat that took place in January to stop the Electoral College from certifying the presidential election. Steve Bannon was one of the key architects of the plan to keep Donald Trump in office even though he clearly lost the election.
Instead of going to the Justice Department to seek a criminal indictment for Contempt of Congress, the Committee should direct the Sergeant-at-Arms to arrest Steve Bannon and compel his appearance before the Committee. The House then could order its Sergeant-at-Arms to put him in a jail cell in Capitol Hill until he testifies before the Committee.
The inherent congressional power to arrest and forcibly compel appearance at a hearing dates back to 1795. The last time Congress exercised this power was in 1934 when it ordered the arrest of William MacCracken, who had refused to testify about corruption in the awarding of federal air mail contracts. The Supreme Court rejected MacCracken's contention that Congress had acted beyond its authority. Jurney v. MacCracken, 294 U.S. 125 (1935). Justice Louis Brandeis wrote the opinion for a unanimous Supreme Court. Brandeis ruled, "the committee had authority to require the production of papers as a necessary incident of the power of legislation, and that the Senate had the power to coerce their production by means of arrest."
Speaker Pelosi noted, "We do have a little jail down in the basement of the Capitol. . . ." Washington Post, May 8, 2019. USA Today noted that, "the Capitol Police have a holding cell three blocks from the Capitol. But if the House Democrats direct the Sergeant-at-Arms to arrest (Attorney General) Barr - or another member of the administration - it's more likely that Congress would use its power over the District of Columbia to commandeer a space in the city jail." USA Today, May 14, 2019.
Congress is a co-equal branch of government. It has the power to arrest and should not have to beg the Justice Department to go into court to enforce a Congressional subpoena. The current plan of Congress involves all three branches of government. This is completely unnecessary and a waste of time.
If the Justice Department seeks a court order compelling Mr. Bannon's appearance before the January 6th Committee, Bannon will file a motion opposing the Justice Department and the court will take months to decide the issues involved. In the Jurney case the Senate took the bull by the horns and arrested William MacCracken. MacCracken then had to go into court to challenge his arrest and he failed.
I would like to see Steve Bannon locked in the Capitol Hill jail until he was forced to testify. Bannon could then go into court, but he would still be in jail until a court set him free. The federal courts would not likely let Bannon out of the Capitol Hill jail until he testified under oath.
For too many years Congress has been weak and has allowed the executive branch to diminish its authority. For example, under the Constitution, Congress and only Congress, has the power to declare war. Article I, Section 8, clause 11. But Congress last declared war in 1941 after Pearl Harbor was attacked. The wars in Vietnam, Iraq and Afghanistan were not declared by Congress. Presidents, Democratic and Republicans, have usurped these powers and went to war without a Congressional declaration.
Congress must take its rightful power back. If Congress needs to beef up its jail facilities, it should do so. Similarly, if Congress needs to increase the firepower and staffing of the Sergeant at Arms, it should do so. If Steve Bannon is allowed to delay and stall his appearance before the January 6th Committee, Congress will be shown to be a paper tiger and others who have been subpoenaed will thumb their noses at the weakest branch of government.