Steve Bannon's indictment reveals a dangerous congressional dependency

On Friday, the Justice Department obtained a grand jury indictment against former Trump adviser Steve Bannon on two counts of contempt of Congress for failing to comply with subpoenas from the House select committee investigating the Jan. 6 attack on the Capitol. The news was celebrated by supporters of the committee’s work — and of congressional oversight more generally — as a rare instance in which the executive branch agreed to enforce a politically divisive congressional subpoena against a former executive branch adviser.

If the Biden administration really wants to make congressional subpoenas effective broadly, it should not just indict in obvious cases like Bannon's.

But whatever happens in Bannon’s criminal case — he is reportedly expected to appear in court next week — what the indictment really underscores is how dependent Congress has become on the executive branch to carry out even the most basic aspects of its oversight function and how dangerous that dependency can be when the oversight is directed toward, or even near, the executive. If the Biden administration really wants to make congressional subpoenas effective broadly, it should not just indict in the obvious cases like Bannon's; it should support statutory reforms like the Protect Our Democracy Act — which includes provisions to make it easier for Congress to enforce its own subpoenas.

The Bannon contretemps has become all too familiar in recent years. Congress, in carrying out its well-established oversight function, requests assistance from a recalcitrant witness. The putative witness refuses to cooperate, either because they believe some privilege protects them from having to do so or because they just don’t want to. Congress holds the witness in contempt. And then … crickets.

Although Congress has historically exercised a summary power to hold noncomplying witnesses in contempt, that power has been moribund for over a century. Instead, Congress today must rely on the courts to enforce ignored subpoenas — either through a prosecution for contempt of Congress initiated by the Justice Department or through a civil suit.

In the latter scenario, the committee that issued the subpoena seeks a judgment against the witness (or the witness sues the committee). Once such a judgment is obtained, the witness either complies or faces the coercive penalty of judicial contempt. As recent experience has taught, neither of these options are ideal. The criminal route requires the cooperation of the Justice Department. And when the witness is a current (or even former) executive branch official, or the case otherwise has a strong partisan valence (and what doesn’t these days), that cooperation may well be lacking.

Meanwhile the civil side of the coin has proven to be incredibly laborious — as parties (and courts) have dragged their feet, allowing congressional sessions to end (and subpoenas issued during them to expire) before final judicial resolution can be obtained. Even before these cases have become moot, they’ve raised a dizzying array of messy procedural questions — about Congress’ standing to enforce its subpoenas, about whether it needs express statutory authority to sue and so on.

The practical effect has been that cases like Bannon’s, in which a congressional subpoena is ever actually enforced, have become the exception, not the rule — even when the witness has no good faith basis for refusing to comply with Congress’ legitimate request.

The path to reform is obvious and has been for some time: Congress can and should create an express, expedited mechanism for judicial review of its subpoenas. Because Congress has broad control over the timing of federal litigation, it can put these cases on a very quick timeline — to ensure the witness can’t win simply by running out the clock. Such a bill is already well on its way to a vote in the House — as part of the Protecting Our Democracy Act, H.R. 5314. Title IV of that bill creates just such an expedited procedure, even authorizing the dispute to be brought to a special “three-judge” district court — with an automatic, mandatory appeal straight to the U.S. Supreme Court. Previous iterations of this bill has enjoyed bipartisan support, as both documented by and reflected in a Lawfare post earlier this week by Jack Goldsmith (who ran the Justice Department’s Office of Legal Counsel under President George W. Bush) and Bob Bauer (who served as White House counsel under President Barack Obama). Its adoption should, therefore, be a no-brainer.

One big obstacle, by many accounts, is the Biden administration. As I’ve noted previously, the administration has been distressingly unwilling to publicly support many of the institutional reforms that gained bipartisan support and traction after and in response to former President Donald Trump’s White House. So too, here.

It is easy to understand why, regardless of who sits behind the Resolute Desk, the executive branch is institutionally averse to reforms that increase the ability of other branches to exercise power, including (if not especially) at the expense of the presidency. That doesn’t mean it's correct for the president to oppose them, especially a president who spent most of his career in Congress and who ran, at least in part, on a promise of restoring responsible government in Washington. So even as the Bannon indictment restores at least a modicum of faith in the idea that congressional subpoenas mean something, real reform requires more than just periodic indictments from the president of the moment.