[House Report 117-152]
[From the U.S. Government Publishing Office]
House Calendar No. 39
117th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 117-152
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RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND STEPHEN
K. BANNON IN CONTEMPT OF CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA
DULY ISSUED BY THE SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH
ATTACK ON THE UNITED STATES CAPITOL
_______
October 19, 2021.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Thompson of Mississippi, from the Select Committee to Investigate
the January 6th Attack on the United States Capitol, submitted the
following
R E P O R T
The Select Committee to Investigate the January 6th Attack
on the United States Capitol, having considered this Report,
reports favorably thereon and recommends that the Report be
approved.
The form of the Resolution that the Select Committee to
Investigate the January 6th Attack on the United States Capitol
would recommend to the House of Representatives for citing
Stephen K. Bannon for contempt of Congress pursuant to this
Report is as follows:
Resolved, That Stephen K. Bannon shall be found to be in
contempt of Congress for failure to comply with a congressional
subpoena.
Resolved, That pursuant to 2 U.S.C. Sec. Sec. 192 and 194,
the Speaker of the House of Representatives shall certify the
report of the Select Committee to Investigate the January 6th
Attack on the United States Capitol, detailing the refusal of
Stephen K. Bannon to produce documents or appear for a
deposition before the Select Committee to Investigate the
January 6th Attack on the United States Capitol as directed by
subpoena, to the United States Attorney for the District of
Columbia, to the end that Mr. Bannon be proceeded against in
the manner and form provided by law.
Resolved, That the Speaker of the House shall otherwise
take all appropriate action to enforce the subpoena.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background on the Select Committee's Investigation............... 4
Select Committee Consideration................................... 15
Select Committee Votes........................................... 15
Select Committee Oversight Findings.............................. 16
C.B.O. Estimate.................................................. 16
Statement of General Performance Goals and Objectives............ 16
Appendix......................................................... 17
PURPOSE AND SUMMARY
On January 6, 2021, a violent mob breached the security
perimeter of the United States Capitol, assaulted and injured
scores of police officers, engaged in hand-to-hand violence
with those officers over an extended period, and invaded and
occupied the Capitol building, all in an effort to halt the
lawful counting of electoral votes and reverse the results of
the 2020 election. In the words of many of those who
participated in the violence, the attack was a direct response
to false statements by then-President Donald J. Trump--
beginning on election night 2020 and continuing through January
6, 2021--that the 2020 election had been stolen by corrupted
voting machines, widespread fraud, and otherwise.
In response, the House adopted House Resolution 503 on June
30, 2021, establishing the Select Committee to Investigate the
January 6th Attack on the United States Capitol (hereinafter
referred to as the ``Select Committee'').
The Select Committee is investigating the facts,
circumstances, and causes of the January 6th attack and issues
relating to the peaceful transfer of power, in order to
identify how the events of January 6th were planned, what
actions and statements motivated and contributed to the attack
on the Capitol, how the violent riot that day was coordinated
with a political and public relations strategy to reverse the
election outcome, and why Capitol security was insufficient to
address what occurred. The Select Committee will evaluate all
facets of these issues, create a public record of what
occurred, and recommend to the House, and its relevant
committees, corrective laws, policies, procedures, rules, or
regulations.
According to many published reports, and his own public
statements, Stephen K. Bannon had specific knowledge about the
events planned for January 6th before they occurred. He said on
his January 5th podcasts, for example:
It's not going to happen like you think it's going to happen.
OK, it's going to be quite extraordinarily different. All I can
say is, strap in. [. . .] You made this happen and tomorrow
it's game day. So strap in. Let's get ready.\1\
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.\2\
\1\Steve Bannon, ``War Room: Pandemic, `EP 634 - Tuesday Special
(with Maggie VandenBerghe, Ben Berquam, and Peter Navarro),''' (Jan. 5,
2021), available at https://rumble.com/vch0pu-ep-634-tuesday-special-w-
maggie-vandenberghe-ben-berquam-and-peter-navarro.html.
\2\Aaron Blake, ``Who could have predicted the Capitol riot? Plenty
of people - including Trump allies,'' Washington Post, (Jan. 28, 2021),
available at https://www.washingtonpost.com/politics/2021/01/28/who-
could-have-predicted-capitol-siege-plenty-people/.
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Mr. Bannon appears to have had multiple roles relevant to
this investigation, including his role in constructing and
participating in the ``stop the steal'' public relations effort
that motivated the attack, his efforts to plan political and
other activity in advance of January 6th, and his participation
in the events of that day from a ``war room'' organized at the
Willard InterContinental Washington D.C. Hotel (the ``Willard
Hotel''). Although he was a private citizen not employed by the
White House at the time, he reportedly spoke with Mr. Trump
directly regarding the plans for January 6th on at least one
occasion. In short, Mr. Bannon appears to have played a multi-
faceted role in the events of January 6th, and the American
people are entitled to hear his first-hand testimony regarding
his actions. The Select Committee expects that such testimony
will be directly relevant to its report and recommendations for
legislative and other action.
On September 23, 2021, Chairman Bennie G. Thompson signed a
subpoena for documents and testimony and transmitted it along
with a cover letter and schedule to counsel for Mr. Bannon, who
accepted service on Mr. Bannon's behalf on September 24,
2021.\3\ The subpoena required that Mr. Bannon produce
responsive documents not later than October 7, 2021, and that
Mr. Bannon appear for a deposition on October 14, 2021.
Subsequent communications between counsel for Mr. Bannon and
Chairman Thompson, however, failed to reach any accommodation
for Mr. Bannon's appearance for testimony or production of
documents. Indeed, counsel for Mr. Bannon on October 7, 2021,
flatly stated that Mr. Bannon would not produce any documents
or appear at the scheduled deposition, as ordered by the lawful
subpoena. Although Mr. Bannon's counsel referenced vague claims
of executive privilege purportedly relayed by the former
President, no such claims have been presented by the former
President to the Select Committee.\4\ And although the Select
Committee is confident that such claims could not bar any of
its requests, there is no conceivable executive privilege claim
that could bar all of the Select Committee's requests or
justify Mr. Bannon's flat refusal to appear for the required
deposition. The Chairman's October 8, 2021, response addressed
the legal arguments raised by Mr. Bannon's counsel and made
clear that the Select Committee expected--as the law demands--
that Mr. Bannon appear before the Select Committee at his
deposition and raise any privilege or other concerns regarding
specific questions on the record of that proceeding.\5\
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\3\See Appendix, Exs. 1, 2 (Subpoena from Chairman Bennie G.
Thompson to Stephen K. Bannon and attachments (Sept. 23, 2021)).
\4\See Appendix, Ex. 3 (Letter from Robert J. Costello to Chairman
Bennie G. Thompson (Oct. 7, 2021)).
\5\See Appendix, Ex. 4 (Letter from Chairman Bennie G. Thompson to
Robert J. Costello (Oct. 8, 2021)).
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The contempt of Congress statute, 2 U.S.C. Sec. 192, makes
clear that a witness summoned before Congress must appear or be
``deemed guilty of a misdemeanor'' punishable by a fine of up
to $100,000 and imprisonment for up to 1 year.\6\ Further, the
Supreme Court in United States v. Bryan (1950) emphasized that
the subpoena power is a ``public duty, which every person
within the jurisdiction of the Government is bound to perform
when properly summoned.''\7\ The Supreme Court recently
reinforced this clear obligation by stating that ``[w]hen
Congress seeks information needed for intelligent legislative
action, it unquestionably remains the duty of all citizens to
cooperate.''\8\
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\6\The prison term for this offense makes it a Class A misdemeanor.
18 U.S.C. 3559(a)(6). By that classification, the penalty for
contempt of Congress specified in 2 U.S.C. 192 increased from $1,000
to $100,000. 18 U.S.C. 3571(b)(5).
\7\United States v. Bryan, 339 U.S. 323, 331 (1950).
\8\Trump v. Mazars USA LLP, 140 S.Ct. 2019, 2036 (2020) (emphasis
in original; internal quotation marks removed). See also Watkins v.
United States, 354 U.S. 178, 187-88 (1957) (stating of citizens that
``It is their unremitting obligation to respond to subpoenas, to
respect the dignity of the Congress and its committees, and to testify
fully with respect to matters within the province of proper
investigation.'').
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Mr. Bannon did not produce documents by the subpoena's
October 7, 2021, deadline nor did he appear for a deposition
scheduled for October 14, 2021, as ordered by the subpoena and
in contravention of the clear instructions by the Select
Committee Chairman on October 8, 2021, to appear at the
deposition and raise any privilege concerns in response to
specific questions on the record. Mr. Bannon's refusal to
comply with the Select Committee's subpoena in any way
represents willful default under the law and warrants contempt
of Congress and referral to the United States Attorney for the
District of Columbia for prosecution as prescribed by law. The
denial of the information sought by the subpoena impairs
Congress's central powers under the United States Constitution.
BACKGROUND ON THE SELECT COMMITTEE'S INVESTIGATION
House Resolution 503 sets out the specific purposes of the
Select Committee, including:
to investigate and report upon the
facts, circumstances, and causes ``relating to
the January 6, 2021, domestic terrorist attack
upon the United States Capitol Complex'';
to investigate and report upon the
facts, circumstances, and causes ``relating to
the interference with the peaceful transfer of
power''; and
to investigate and report upon the
facts, circumstances, and causes relating to
``the influencing factors that fomented such an
attack on American representative democracy
while engaged in a constitutional process.''
The Supreme Court has long recognized Congress's oversight
role. ``The power of the Congress to conduct investigations is
inherent in the legislative process.''\9\ Indeed, Congress's
ability to enforce its investigatory power ``is an essential
and appropriate auxiliary to the legislative function.''\10\
``Absent such a power, a legislative body could not `wisely or
effectively' evaluate those conditions `which the legislation
is intended to affect or change.'''\11\
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\9\Mazars, 140 S.Ct. at 2031 (2020) (citing Watkins, 354 U.S. at
187) (internal quotation marks removed).
\10\Mazars, 140 S.Ct. at 2031 (2020) (citing McGrain v. Daugherty,
273 U.S. 135, 174 (1927)).
\11\Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 305 (D.D.C. 1976),
aff'd, 548 F.2d 977 (D.C.Cir. 1976) (quoting McGrain, 273 U.S. at 175).
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The oversight powers of House and Senate committees are
also codified in legislation. For example, the Legislative
Reorganization Act of 1946 directed committees to ``exercise
continuous watchfulness'' over the executive branch's
implementation of programs within its jurisdictions,\12\ and
the Legislative Reorganization Act of 1970 authorized
committees to ``review and study, on a continuing basis, the
application, administration, and execution'' of laws.\13\
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\12\Pub. L. 79-601, 79th Cong. 136, (1946).
\13\Pub. L. 91-510, 91st Cong. 118, (1970).
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Pursuant to House rule XI and House Resolution 503, the
Select Committee is authorized ``to require, by subpoena or
otherwise, the attendance and testimony of such witnesses and
the production of books, records, correspondence, memoranda,
papers, and documents as it considers necessary.'' Further,
section 5(c)(4) of House Resolution 503 provides that the
Chairman of the Select Committee may ``authorize and issue
subpoenas pursuant to clause 2(m) of rule XI in the
investigation and study'' conducted pursuant to the enumerated
purposes and functions of the Select Committee. The Select
Committee's authorizing resolution further states that the
Chairman ``may order the taking of depositions, including
pursuant to subpoena, by a Member or counsel of the Select
Committee, in the same manner as a standing committee pursuant
to section 3(b)(1) of House Resolution 8, One Hundred
Seventeenth Congress.''
A. The Select Committee seeks information from Mr. Bannon central to
its investigative purposes
Mr. Bannon's testimony and document production are critical
to the Select Committee's investigation. Among other topics,
the Select Committee seeks facts that explain why the events of
January 6th turned violent. Statements publicly made by Mr.
Bannon on January 5, 2021, suggest that he had some
foreknowledge about extreme events that would occur the next
day. Mr. Bannon noted on January 5th that the country was
facing a ``constitutional crisis'' and ``that crisis is about
to go up about five orders of magnitude tomorrow.''\14\ He also
stated that, ``All hell is going to break loose tomorrow. [. .
.] It's not going to happen like you think it's going to
happen. OK, it's going to be quite extraordinarily
different.''\15\ Congress, through the Select Committee, is
entitled to discover facts concerning the activities leading up
to the violence on January 6th. Under House Resolution 503, the
Select Committee is directed to investigate those facts, which
include ``the influencing factors that fomented such an
attack.'' And after making public statements on January 5th
like those quoted above, Mr. Bannon is obliged by law to comply
with the reasonable requests of the Select Committee through
its subpoena. If any witness so close to the events leading up
to the January 6th attack could decline to provide information
to the Select Committee, Congress would be severely hamstrung
in its ability to exercise its constitutional powers with
highly relevant information informing its choices. Information
in Mr. Bannon's possession is essential to putting other
witnesses' testimony and productions into appropriate context
and to ensuring the Select Committee can fully and
expeditiously complete its work.
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\14\Steve Bannon, ``War Room: Pandemic, `EP 634 - Tuesday Special
(with Maggie VandenBerghe, Ben Berquam, and Peter Navarro),''' (Jan. 5,
2021), available at https://rumble.com/vch0pu-ep-634-tuesday-special-w-
maggie-vandenberghe-ben-berquam-and-peter-navarro.html.
\15\Id.
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Mr. Bannon was the Chief Executive Officer of Mr. Trump's
2016 presidential campaign and served as then-President Trump's
chief strategist, a White House position, for 8 months in
2017.\16\ Mr. Trump fired Mr. Bannon in August 2017,\17\ and
Mr. Bannon did not thereafter hold a position in the executive
branch.
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\16\Brian Bennett, ```You Got to Be the Last Guy He Talks To.' The
Rise and Fall of Trump Adviser Steve Bannon,'' Time, (Aug. 21, 2020),
available at https://time.com/5882072/rise-and-fall-of-steve-bannon/.
\17\Jeff Mason and Steve Holland, ``Trump fired adviser Bannon,''
Reuters, (Aug. 18, 2017), available at https://www.reuters.com/article/
us-usa-trump-bannon/trump-fires-adviser-bannon-idUSKCN1AY205.
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After Mr. Bannon left government service, he remained
actively involved in media and politics. In October 2019, Mr.
Bannon began a radio show and podcast focused on rallying
supporters of Mr. Trump in support of various causes and
issues.\18\ According to one report, before the election even
occurred in 2020, Mr. Bannon made public efforts to explain
``his belief that the Democrats are plotting to steal the 2020
election.''\19\ One account of conversations involving Mr.
Bannon (and Mr. Trump) prior to January 6th describes Mr.
Bannon as encouraging Mr. Trump to ``focus on January 6th'' and
articulating a plan to have millions of Americans consider Mr.
Biden an illegitimate President.\20\ That same reporting
suggests that Mr. Bannon was in frequent contact with the White
House in late-December and early-January and spoke directly
with the President several times.\21\ Mr. Bannon is reported to
have urged then-President Trump to pressure then-Vice President
Michael R. Pence to assist in overturning the results of the
2020 election.\22\
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\18\Daniel Lippman, ``Steve Bannon launches radio show and podcast
on impeachment,'' Politico, (Oct. 24, 2019), available at https://
www.politico.com/news/2019/10/22/steve-bannon-radio-show-podcast-
impeachment-055167.
\19\E.g., KUSI Newsroom, ``Steve Bannon explains how the Democrats
are plotting to steal the 2020 election,'' KUSI, (Oct. 1, 2020),
available at https://www.kusi.com/steve-bannon-explains-how-the-
democrats-are-plotting-to-steal-the-2020-election.
\20\Bob Woodward and Robert Costa, Peril, (New York: Simon &
Shuster, 2021), p. 207.
\21\Id., pp. 207, 233-234.
\22\Id., p. 207.
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Mr. Bannon was reportedly encouraging President Trump's
supporters to take dramatic action. According to one report,
immediately after the November 3rd election, Mr. Bannon began
promoting false conspiracy claims that the election had been
stolen and referred to the election as ``a mass fraud.''\23\
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\23\Rob Kuznia, et al., ``Stop the Steal's massive disinformation
campaign connected to Roger Stone,'' CNN (Nov. 14, 2020), available at
https://www.cnn.com/2020/11/13/business/stop-the-steal-disinformation-
campaign-invs/index.html.
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The day before the January 6th attack on the Capitol, Mr.
Bannon predicted that ``All hell is going to break loose
tomorrow.''\24\ He told the listeners of his radio show:
It's not going to happen like you think it's going to happen.
OK, it's going to be quite extraordinarily different. All I can
say is, strap in. [. . .] You made this happen and tomorrow
it's game day. So strap in. Let's get ready.\25\
He added:
So many people said, ``Man, if I was in a revolution, I would
be in Washington.'' Well, this is your time in history.\26\
And:
It's all converging, and now we're on the point of attack
tomorrow.\27\
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\24\Aaron Blake, ``Who could have predicted the Capitol riot?
Plenty of people - including Trump allies,'' Washington Post, (Jan. 28,
2021), available at https://www.washingtonpost.com/politics/2021/01/28/
who-could-have-predicted-capitol-siege-plenty-people/.
\25\Steve Bannon, ``War Room: Pandemic, `EP 634 - Tuesday Special
(with Maggie VandenBerghe, Ben Berquam, and Peter Navarro),''' (Jan. 5,
2021), available at https://rumble.com/vch0pu-ep-634-tuesday-special-w-
maggie-vandenberghe-ben-berquam-and-peter-navarro.html.
\26\Aaron Blake, ``Who could have predicted the Capitol riot?
Plenty of people - including Trump allies,'' Washington Post, (Jan. 28,
2021), available at https://www.washingtonpost.com/politics/2021/01/28/
who-could-have-predicted-capitol-siege-plenty-people/.
\27\Id.
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Public reporting also suggests that Mr. Bannon was among
several prominent supporters of efforts to undermine the
election results who gathered at the Willard Hotel, two blocks
from the White House, on the days surrounding the January 6th
attack.\28\ The group that assembled at the Willard Hotel is
reported to have included members of the Trump campaign's legal
team (including Rudolph Giuliani and John Eastman), several
prominent proponents of false election fraud claims that had
been promoted by Mr. Trump (e.g., Russell Ramsland, Jr. and
Boris Epshteyn), as well as Roger Stone, who left the hotel
with Oath Keeper bodyguards, and campaign spokesman Jason
Miller.\29\ It has been reported that the participants in the
meetings at the Willard Hotel discussed plans to stop or delay
the January 6th counting of the election results and persuade
Members of Congress to block the electoral count.\30\
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\28\Woodward and Costa, pp. 233-234; Andre J. Ellington, ``Steve
Bannon Confirms His Involvement in January 6 Insurrection on `War Room'
Podcast,'' Newsweek, (Sept. 22, 2021), available at https://
www.newsweek.com/steve-bannon-confirms-his-involvement-january-6-
insurrection-war-room-podcast-1631667.
\29\Woodward and Costa, pp. 233-234; Michael Wolff, ``Donald
Trump's January 6; The view from inside the Oval Office,'' New York,
(June 28, 2021), available at https://nymag.com/intelligencer/article/
michael-wolff-landslide-final-days-trump-presidency-excerpt.html; Seth
Abramson (@SethAbramson), Twitter (June 12, 2021, 10:51 a.m.), https://
twitter.com/SethAbramson/status/1403726643722547200/photo/3.
\30\Woodward and Costa, p. 233.
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Mr. Bannon's statements the day before the January 6th
attack, and his association with both the Trump inner circle
and outside groups involved in the ``Stop the Steal''\31\
events, make his testimony about the Willard Hotel meetings
essential to fully understanding and establishing
responsibility for the events of January 6th. In addition to
the indications noted above regarding Mr. Bannon's role in
various activities leading up to January 6th, he also
reportedly spoke directly to Mr. Trump on one or more occasions
regarding what could or should happen on January 6th.\32\
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\31\There were a number of events organized to take place on
January 5th and January 6th at which supporters of President Trump
gathered, and made and heard speeches, in support of the position that
Congress should not affirm that Joe Biden had won the 270 or more
electoral college votes necessary to be elected President.
\32\See, e.g., Woodward and Costa, p. 207.
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B. Mr. Bannon's refusal to comply with the Select Committee's subpoena
for testimony and documents
On September 23, 2021, Chairman Thompson signed and
transmitted a subpoena, cover letter, and schedule to Mr.
Bannon ordering the production of both documents and testimony
relevant to the Select Committee's investigation into
``important activities that led to and informed the events at
the Capitol on January 6, 2021.''\33\ Chairman Thompson's
letter identified public reports describing Mr. Bannon's
activities and past statements, documenting some of the public
information that gave the Select Committee reason to believe
Mr. Bannon possesses information about matters within the scope
of the Select Committee's inquiry.
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\33\See Appendix, Exs. 1, 2.
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The specific documents requested are found in the schedule
in the Appendix, Exhibit 1, (pp. 4-5). The schedule included
with the subpoena addressed topics including but not limited to
Mr. Bannon's role in planning and promoting the January 6,
2021, rally and march in support of Mr. Trump; Mr. Trump's
participation in the rally and march; Mr. Bannon's podcast and
its use for promoting the rally and march; and Mr. Bannon's
strategic communications with a host of individuals known to be
involved with the former President's 2020 election campaign and
subsequent efforts to undermine or cast doubt on the results of
that election.
The subpoena required Mr. Bannon to produce the requested
documents to the Select Committee on October 7, 2021, at 10
a.m. and required Mr. Bannon's presence for the taking of
testimony on October 14, 2021, at 10 a.m.\34\ Mr. Bannon had
designated Robert J. Costello as his attorney for the purposes
of the Select Committee's inquiry, and Mr. Costello accepted
service of the subpoena on behalf of Mr. Bannon on September
24, 2021.\35\
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\34\See Appendix, Ex. 1.
\35\See Appendix, Ex. 2 (Emails between Select Committee staff and
Robert J. Costello (Sept. 23-24, 2021)).
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On October 7, 2021, at 10 a.m., at the designated location
identified in the subpoena, Mr. Bannon failed to appear and
produce documents. Instead, over 7 hours later, Mr. Costello
sent a letter to Chairman Thompson via email at 5:04 p.m.
reinforcing Mr. Bannon's refusal to comply.
Mr. Costello's letter cited an October 6, 2021, letter from
former President Trump's counsel Justin Clark to Mr. Costello
that purportedly instructed Mr. Bannon to ``invoke any
immunities and privileges he may have from compelled
testimony,'' ``not produce any documents concerning privileged
material,'' and ``not provide any testimony concerning
privileged material[.]''\36\ Mr. Costello's letter then
asserted that Mr. Bannon was ``legally unable to comply,'' with
the subpoena for ``documents or testimony,'' claiming to rely
on the instructions of Mr. Trump to not disclose privileged
information.\37\ The two-page letter contained only conclusory
statements, no legal analysis, and approximately half of it
purported to quote from the letter of October 6, 2021, from the
counsel to Mr. Trump.
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\36\See Appendix, Ex. 3 (Letter from Robert J. Costello to Select
Committee staff (Oct. 7, 2021)).
\37\Id.
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On October 8, 2021, Chairman Thompson responded to Mr.
Costello's October 7, 2021, letter.\38\ He said that Mr. Trump
had not communicated an invocation of privilege either formally
or informally to the Select Committee. He further stated that,
regardless, the information the Select Committee seeks from Mr.
Bannon concerns his actions as a private citizen and involves a
range of subjects not even conceivably reached by any executive
privilege assertion. Chairman Thompson also noted that--even
assuming Mr. Bannon were correct that a privilege applied to
his documents and testimony and Mr. Trump had formally invoked
a privilege through the long-standing practice of consultation
with the current President (which is not the case)--Mr. Bannon
does not enjoy anything like the type of absolute immunity his
attorney suggested would insulate Mr. Bannon from an obligation
to comply with the Select Committee's subpoena. Again, there is
no conceivable legal claim to support such an assertion.
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\38\See Appendix, Ex. 4 (Letter from Chairman Bennie G. Thompson to
Robert J. Costello (Oct. 8, 2021)).
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The Chairman underscored that Mr. Bannon remained obligated
to produce documents and testimony about all non-privileged
material that was responsive to the subpoena, was expected to
produce a privilege log identifying any documents being
withheld based on any specific privilege claims, and that the
Select Committee expected Mr. Bannon to appear at the
deposition on October 14th and state on the record any
privilege concerns raised by specific questions. As made clear
by the deposition rules provided to Mr. Bannon by the Select
Committee, under House deposition regulation 3, Mr. Bannon may
be accompanied at the deposition by a personal, nongovernmental
counsel to advise him of his rights.\39\
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\39\U.S. House of Representatives, ``117th Congress Regulations for
Use of Deposition Authority,'' 167 Cong. Rec., (Jan. 4, 2021), p. H41.
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The Chairman concluded by saying that Mr. Bannon was
therefore not in compliance with the Chairman's duly issued
subpoena for documents, and that the Select Committee would
view refusal to produce documents and refusal to appear at the
October 14th deposition as willful non-compliance with the
subpoena. The Chairman warned that this willful non-compliance
would put Mr. Bannon in jeopardy of a vote to refer him to the
House to consider a criminal contempt referral to a U.S.
Attorney pursuant to 2 U.S.C. Sec. Sec. 192 and 194.\40\
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\40\See Appendix, Ex. 4 (Letter from Chairman Bennie G. Thompson to
Robert J. Costello (Oct. 8, 2021)).
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On October 13, 2021, at approximately 12:35 p.m., Select
Committee staff emailed Mr. Costello to discuss logistics for
the deposition at which Mr. Bannon was compelled to appear on
October 14, 2021, at 10 a.m. Approximately an hour later,
Select Committee staff and Mr. Costello spoke on the telephone,
during which Mr. Costello informed the Select Committee that
Mr. Bannon would not appear the next day, and that a letter to
that effect was forthcoming. Mr. Costello indicated that he was
in contact with Mr. Trump's attorney, and he had informed Mr.
Trump's attorney of the Select Committee's explanation of the
deficiencies in Mr. Bannon's and Mr. Trump's justifications for
Mr. Bannon's defiance of the subpoena.
On that call, Mr. Costello represented to the Select
Committee that he had asked Mr. Trump's counsel to identify,
with specificity, communications for which executive privilege
would apply. Later that day, Mr. Costello transmitted a
response to Chairman Thompson's October 8, 2021, letter. In
that letter, Mr. Costello reiterated his position that Mr.
Bannon's refusal to comply with the Select Committee subpoena
was based on the former President's ``executive and other
privileges.''\41\ Mr. Costello claimed that President Trump's
counsel had ``exercis[ed] his executive privilege'' and
``directed Mr. Bannon not to produce documents or testify until
the issue of executive privilege is resolved.''\42\ He further
stated that Mr. Bannon would refuse to produce any documents or
appear for testimony until after a court had ruled on, or
former President Trump and the Select Committee reached an
agreement on, the matter of executive privilege that the former
President had never actually communicated to the Select
Committee. In defiance of the clear instructions by the Select
Committee to appear at the deposition and state any privilege
concerns as they applied to specific questions, Mr. Bannon
refused to appear to make any objections in person. Further, he
refused to engage at all with the specifics of the document
demands, including failing to provide a privilege log
identifying any privilege claims regarding specific documents.
---------------------------------------------------------------------------
\41\See Appendix, Ex. 5 (Letter from Robert J. Costello to Chairman
Bennie G. Thompson (Oct. 13, 2021)).
\42\Id.
---------------------------------------------------------------------------
On October 14, 2021, at 10 a.m., Mr. Bannon failed to
appear at the designated location to provide testimony relevant
to the Select Committee's inquiry in response to questions
posed, as was required by the subpoena.\43\
---------------------------------------------------------------------------
\43\See Appendix.
---------------------------------------------------------------------------
At 2:05 p.m. on October 15, 2021, Chairman Thompson sent a
letter to Mr. Costello noting that Mr. Bannon had not even
attempted to provide the Select Committee any explanation for
refusing to comply with the Select Committee's demand for
documents and testimony on a range of subjects that do not
involve communications with the former President. The Chairman
also reiterated that Mr. Bannon does not enjoy absolute
immunity from testifying before the Select Committee. The
Chairman reminded Mr. Costello that the Select Committee views
Mr. Bannon's conduct as willful non-compliance with the
subpoena. He notified Mr. Costello that, accordingly, the
Select Committee would meet on October 19, 2021, to consider a
criminal contempt referral for Mr. Bannon, and invited Mr.
Costello to submit any written materials he believed the Select
Committee should consider in its deliberations on this
referral.
On October 18, 2021, Mr. Costello wrote Chairman Thompson
requesting a ``one-week adjournment of our response'' to the
Chairman's October 15th letter, citing the need to ``assess''
litigation Mr. Trump filed on October 18, 2021, concerning the
Select Committee's request for documents from the National
Archives.\44\ The Chairman replied on October 19, 2021, that
Mr. Trump's lawsuit was immaterial to the Select Committee's
subpoena to Mr. Bannon, and accordingly, no grounds existed for
any further delay in Mr. Bannon's compliance with the
subpoena.\45\
---------------------------------------------------------------------------
\44\Letter from Robert J. Costello to Chairman Thompson, (Oct. 18,
2021).
\45\Letter from Chairman Thompson to Robert J. Costello, (Oct. 19,
2021).
---------------------------------------------------------------------------
C. Mr. Bannon's purported basis for non-compliance is wholly without
merit
Mr. Bannon has relied on no legal authority to support his
refusal to comply in any fashion with the subpoena. Mr.
Bannon's refusal to comply with the subpoena is ostensibly
based on his decision to ``honor [former President Trump's]
invocation of executive privilege'' and instruction that, ``to
the fullest extent permitted by law,'' Mr. Bannon ``invoke any
immunities and privileges he may have from compelled
testimony,'' ``not produce any documents concerning privileged
material,'' and ``not provide any testimony concerning
privileged material.''\46\ Far from being ``permitted by law,''
Mr. Bannon's conduct in response to the Select Committee's
subpoena constitutes a violation of the contempt of Congress
statutory provisions.
---------------------------------------------------------------------------
\46\See Appendix, Ex. 3 (Letter from Robert J. Costello to Select
Committee staff (Oct. 7, 2021)).
---------------------------------------------------------------------------
1. Executive privilege has not been invoked
Mr. Trump has had no communication with the Select
Committee. In an October 7th letter to the Select Committee,
Mr. Bannon's attorney referred to purported correspondence from
Mr. Trump's attorney, Justin Clark, in which Mr. Clark asserted
that the Select Committee subpoena seeks information that is
``potentially protected from disclosure by executive and other
privileges, including among others the presidential
communications, deliberative process, and attorney-client
privileges.''\47\ According to Mr. Bannon's attorney, Mr. Clark
also stated that, ``President Trump is prepared to defend these
fundamental privileges in court.''\48\
---------------------------------------------------------------------------
\47\Id.
\48\Id.
---------------------------------------------------------------------------
In United States v. Reynolds, 345 U.S. 1, 7-8 (1953), the
Supreme Court held that executive privilege:
[B]elongs to the Government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to
be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the
matter, after actual personal consideration by that
officer.\49\
Here, the Select Committee has not been provided with any
formal invocation of executive privilege by the President, the
former President,\50\ or any other employee of the executive
branch.
In fact, in an October 18, 2021, letter to Mr. Bannon's
attorney, the White House Counsel's Office specifically stated
that ``at this point we are not aware of any basis for [Mr.
Bannon's] refusal to appear for a deposition.'' The letter also
informed Mr. Bannon's counsel that:
---------------------------------------------------------------------------
\49\See also United States v. Burr, 25 F. Cas. 187, 192 (CCD Va.
1807) (ruling that President Jefferson had to personally identify the
passages he deemed confidential and could not leave this determination
to the U.S. Attorney). In Reynolds, the Court addressed the ``state
secrets privilege,'' which can be viewed as a subset of executive
privilege.
\50\ The Supreme Court has held that a former President may assert
executive privilege on his own, but his claim should be given less
weight than that of an incumbent President. Nixon v. Administrator of
General Services, 433 U.S. 425, 451 (1977) (the ``expectation of the
confidentiality of executive communications thus has always been
limited and subject to erosion over time after an administration leaves
office''). The Supreme Court in Nixon v. GSA made note of the fact that
neither President Ford nor President Carter supported former President
Nixon's assertion of privilege, which, the Court said, ``detracts from
the weight of his contention [that the disclosure of the information at
issue] impermissibly intrudes into the executive function and the needs
of the Executive Branch.'' Id., p. 449.
[P]resident Biden determined that an assertion of executive
privilege is not justified with respect to a set of documents
shedding light on events within the White House on and about
January 6, 2021, and with respect to documents and testimony
concerning the former President's efforts to use the Department
of Justice to advance a false narrative that the 2020 election
was tainted by widespread fraud. President Biden's
determination that an assertion of privilege is not justified
with respect to these subjects applies to [Mr. Bannon's]
deposition testimony and to any documents [Mr. Bannon] may
possess concerning either subject.\51\
---------------------------------------------------------------------------
\51\Letter to Robert J. Costello from Jonathan C. Su, Deputy
Counsel to the President, (Oct. 18, 2021).
With respect to the former President, the Select Committee
has not received a formal invocation of executive privilege.
Mr. Costello's October 13th letter merely states that the
attorney for former President Trump had informed him that
``President Trump is exercising his executive privilege.'' This
third-hand, non-specific assertion of privilege, without any
description of the documents or testimony over which privilege
is claimed, is insufficient to activate a claim of executive
privilege.
2. Even assuming an invocation of executive privilege
(which is not justified here), assertion of
privilege could not bar the Select Committee from
lawfully obtaining the documents and testimony it
seeks from Mr. Bannon
The Select Committee seeks information from Mr. Bannon on a
wide range of subjects that it is inconceivable executive
privilege would reach. Mr. Bannon was a private citizen during
the relevant time period and the testimony and documents the
Select Committee is demanding do not concern discussion of
official government matters with the President and his
immediate advisors. The law is clear that executive privilege
does not extend to discussions between the President and
private citizens relating to non-governmental business or among
private citizens. In United States v. Nixon, 418 U.S. 683, 708
(1974), the Supreme Court recognized a qualified, presumptive
privilege for presidential communications. The scope of the so-
called ``presidential communications privilege'' was further
defined by the Court to apply only to ``communications in
performance of [a President's] responsibilities of his office
and made in the process of shaping policies and making
decisions.''\52\
---------------------------------------------------------------------------
\52\Nixon v. Administrator of General Services, 433 U.S. at 449
(internal citations and quotations omitted).
---------------------------------------------------------------------------
In In re Sealed Case (Espy), 121 F.3d 729, 752 (D.C. Cir.
1997), the DC Circuit extended the presidential communications
privilege to ``communications authored or solicited and
received by those members of an immediate White House adviser's
staff who have broad and significant responsibility for
investigating and formulating the advice to be given the
President on the particular matter to which the communications
relate.'' The court stressed that the privilege only applies to
communications intended to advise the President ``on official
government matters.''\53\ In Judicial Watch, Inc. v. Department
of Justice, 365 F.3d 1108, 1123 (D.C. Cir. 2004), the court
reaffirmed that the presidential communications privilege
applies only to documents ``solicited and received by the
President or his immediate advisers in the Office of the
President.'' Relying on In re Sealed Case and the principle
that ``the presidential communications privilege should be
construed as narrowly as is consistent with ensuring that the
confidentiality of the President's decision-making process is
adequately protected,''\54\ the court refused to extend the
privilege even to executive branch employees whose sole
function was to provide advice to the President in the
performance of a ``quintessential and nondelegable Presidential
power.''\55\
---------------------------------------------------------------------------
\53\Id. (Italics added.)
\54\Id., p. 1116.
\55\Id., p. 1111. See also Committee on the Judiciary v. Miers, 558
F. Supp.2d 53, 100 (D.D.C. 2008) (privilege claimants acknowledged that
executive privilege applies only to ``a very small cadre of senior
advisors'').
---------------------------------------------------------------------------
Here, neither Mr. Bannon nor former President Trump has
asserted that Mr. Bannon's testimony would reveal
communications involving the President or members of his
immediate White House staff regarding the performance of the
President's responsibilities of his office. At no point during
the time period under investigation by the Select Committee was
Mr. Bannon a government employee, much less a key White House
adviser in the Office of the President. Moreover, the matters
under review by the Select Committee concern efforts to
overturn legitimate election results and an attack on our
democratic institutions. Communications regarding these
subjects (or any other matter related to the presidential
campaign), by definition, would not constitute advice on
``official government matters'' that could be shielded by
executive privilege. In any event, any confidentiality interest
in such communications would be far outweighed by the oversight
needs for this information that are at stake in the Select
Committee's investigation.
In sum: In this instance, there is no reasonable argument
that Mr. Bannon's communications with the President regarding
January 6th are the type of matters on which privilege can be
asserted. Also, the Select Committee is confident that no
executive privilege assertion would bar Mr. Bannon's testimony
regarding his communications directly with the President
regarding January 6th--because the privilege is qualified and
could be overcome by an appropriate showing of need. Again,
there is no conceivable assertion that privilege could apply to
other information sought that does not constitute
communications with Mr. Trump during his presidency. Beyond
communications between Mr. Bannon and Mr. Trump, the Select
Committee seeks documents and testimony from Mr. Bannon
regarding his own actions and interactions with other private
citizens relating to the events of January 6th. For example,
the subpoena to Mr. Bannon includes requests for documents
related to many other matters, including:\56\
---------------------------------------------------------------------------
\56\See Appendix, Ex. 1.
---------------------------------------------------------------------------
His presence, purpose, statements,
and activities at a meeting with Members of
Congress at the Willard Hotel on January 5,
2021, or the presence, purpose, statements, or
activities of others in attendance related to
that meeting.
Anyone with whom he communicated by
any means with respect to any aspect of the
planning, objectives, conduct, or participation
in the January 6, 2021, rally, including but
not limited to Boris Epshteyn.
Anyone with whom he communicated
with respect to efforts, plans, or proposals to
contest the 2020 presidential election results
or delay, influence, or impeded the electoral
count, including but not limited to
communications with Boris Epshteyn, Kashyap
Patel, and Ezra Cohen-Watnick.
All public relations, advertising,
or other communications efforts to persuade
Americans that the election was stolen.
The January 6, 2021, rally on The
Mall and Capitol grounds in Washington, DC, in
support of President Donald J. Trump and
opposition to the counting of the results of
the 2020 presidential election, including its
permitting, planning, objectives, financing,
and conduct, as well as any communications to
or from any person or group involved in
organizing or planning for the January 6, 2021,
rally.
The financing or fundraising to
assist any individual's or organization's
travel to or accommodation in Washington, DC,
to attend or participate in the January 6,
2021, rally.
The ``War Room'' podcast, insofar as
at any time he communicated through it
statements referring or relating to the January
6, 2021, rally, including all statements
concerning its planning, objectives, purpose,
organization, message, or sponsorship.
The organization or group named
``March for Trump'' and its activities relating
to the January 6, 2021, rally, including any
communications Mr. Bannon had with any officer
or member of ``March for Trump'' relating in
any way to the planning, objectives,
organization, message, sponsorship, and
participation in the January 6, 2021, rally.
No colorable claim of executive privilege could possibly be
made with respect to documents or testimony related to these
and other matters sought by the subpoena, or any other topics
that were not connected to official decisionmaking by the
President.
3. Mr. Bannon is not entitled to absolute immunity
Mr. Bannon has refused to provide any responsive documents
or appear for a deposition based on his asserted reliance on
Mr. Trump's purported invocation of executive privilege.
However, even if Mr. Trump had invoked executive privilege, and
even if certain testimony or documents would fall within that
privilege, Mr. Bannon would not be immune from compelled
testimony before the Select Committee.
The law is clear that even senior White House aides who
advise the President on official government business are not
immune from compelled congressional process.\57\ To the extent
there has been a formal invocation of executive privilege by
the Office of the President, and in the unlikely event that
testimony by Mr. Bannon relates to information covered by that
privilege, Mr. Bannon was nonetheless required to appear before
the Select Committee to provide testimony and invoke executive
privilege where appropriate. If there are responsive documents
that Mr. Bannon claims include privileged information, he was
required to provide the Select Committee with a privilege log
that ``identifies and describes the material in a manner
`sufficient to enable resolution of any privilege
claims.'''\58\ Mr. Bannon did neither. He should be held in
contempt.
---------------------------------------------------------------------------
\57\See also Committee on the Judiciary v. McGahn, 415 F.Supp.3d
148, 214 (D.D.C. 2019) (and subsequent history) (``To make the point as
plain as possible, it is clear to this Court for the reasons explained
above that, with respect to senior-level presidential aides, absolute
immunity from compelled congressional process simply does not
exist.''); Committee on the Judiciary v. Miers, 558 F. Supp.2d 53, 101
(D.D.C. 2008) (holding that White House counsel may not refuse to
testify based on direction from the President that testimony will
implicate executive privilege).
\58\See Comm. on Oversight and Gov't Reform v. Holder, 2014 U.S.
Dist. Lexis 200278 at *7 (D.D.C., Aug. 20, 2014) (quoting Miers, 558 F.
Supp. 2d at 107).
---------------------------------------------------------------------------
D. Precedent supports the Select Committee's position to proceed with
holding Mr. Bannon in contempt
An individual who fails or refuses to comply with a House
subpoena may be cited for contempt of Congress.\59\ Pursuant to
2 U.S.C. Sec. 192, the willful refusal to comply with a
congressional subpoena is punishable by a fine of up to
$100,000 and imprisonment for up to 1 year.\60\ A committee may
vote to seek a contempt citation against a recalcitrant
witness. This action is then reported to the House. If a
resolution to that end is adopted by the House, the matter is
referred to a U.S. Attorney, who has a duty to refer the matter
to a grand jury for an indictment.\61\
---------------------------------------------------------------------------
\59\Eastland v. United States Servicemen's Fund, 421 U.S. 491, 505,
515 (1975).
\60\See supra note 6. The prison term for this offense makes it a
Class A misdemeanor. 18 U.S.C. 3559(a)(6). By that classification,
the penalty for contempt of Congress specified in 2 U.S.C. 192
increased from $1,000 to $100,000. 18 U.S.C. 3571(b)(5).
\61\See 2 U.S.C. Sec. 192.
---------------------------------------------------------------------------
In his October 8th letter to Mr. Bannon's counsel, the
Chairman of the Select Committee advised Mr. Bannon that his
claims of executive privilege were not well-founded and did not
absolve him of his obligation to produce documents and testify
in deposition. The Chairman made clear that the Select
Committee expected Mr. Bannon to appear for his scheduled
deposition on October 14th and produce the requested documents
at that time. The Chairman warned Mr. Bannon that his continued
non-compliance would put him in jeopardy of a vote to refer him
to the House to consider a criminal contempt referral. Mr.
Bannon's failure to appear for deposition or produce responsive
documents in the face of this clear advisement and warning by
the Chairman constitutes a willful failure to comply with the
subpoena.
SELECT COMMITTEE CONSIDERATION
The Select Committee met on Tuesday, October 19, 2021, with
a quorum being present, to consider this Report and ordered it
and the Resolution contained herein to be favorably reported to
the House, with an amendment, by a recorded vote of 9 ayes to 0
noes.
SELECT COMMITTEE VOTES
Clause 3(b) of rule XIII requires the Select Committee to
list the recorded votes during consideration of this Report:
1. A motion by Vice Chair Cheney to report the Select
Committee Report for a Resolution Recommending that the House
of Representatives find Stephen K. Bannon in Contempt of
Congress for Refusal to Comply with a Subpoena Duly Issued by
the Select Committee to Investigate the January 6th Attack on
the United States Capitol favorably to the House, as amended,
was agreed to by a recorded vote of 9 ayes to 0 noes (Rollcall
No. 1).
Select Committee Rollcall No. 1
Motion by Vice Chair Cheney to Favorably Report, as Amended
Agreed to: 9 ayes to 0 noes
------------------------------------------------------------------------
Members Vote
------------------------------------------------------------------------
Ms. Cheney, Vice Chair.................................... Aye
Ms. Lofgren............................................... Aye
Mr. Schiff................................................ Aye
Mr. Aguilar............................................... Aye
Mrs. Murphy (FL).......................................... Aye
Mr. Raskin................................................ Aye
Mrs. Luria................................................ Aye
Mr. Kinzinger............................................. Aye
Mr. Thompson (MS), Chairman............................... Aye
------------------------------------------------------------------------
SELECT COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) of rule XIII, the Select
Committee advises that the oversight findings and
recommendations of the Select Committee are incorporated in the
descriptive portions of this Report.
CONGRESSIONAL BUDGET OFFICE ESTIMATE
The Select Committee finds the requirements of clause
3(c)(2) of rule XIII and section 308(a) of the Congressional
Budget Act of 1974, and the requirements of clause 3(c)(3) of
rule XIII and section 402 of the Congressional Budget Act of
1974, to be inapplicable to this Report. Accordingly, the
Select Committee did not request or receive a cost estimate
from the Congressional Budget Office and makes no findings as
to the budgetary impacts of this Report or costs incurred to
carry out the Report.
STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII, the objective of
this Report is to enforce the Select Committee's authority to
investigate the facts, circumstances, and causes of the January
6th attack and issues relating to the peaceful transfer of
power, in order to identify and evaluate problems and to
recommend corrective laws, policies, procedures, rules, or
regulations; and to enforce the Select Committee's subpoena
authority found in section 5(c)(4) of House Resolution 503.
APPENDIX
The official transcript that memorialized Mr. Bannon's
failure to appear at his deposition as ordered by subpoena,
along with exhibits included in that record, is as follows:
SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE
U.S. CAPITOL, U.S. HOUSE OF REPRESENTATIVES,
WASHINGTON, DC
DEPOSITION OF: STEPHEN K. BANNON (NO-SHOW)
THURSDAY, OCTOBER 14, 2021
WASHINGTON, DC
The deposition in the above matter was held in * * * * commencing
at 10:00 a.m.
PRESENT: Representative Schiff.
APPEARANCES:
FOR THE SELECT COMMITTEE TO INVESTIGATE THE JANUARY
6TH ATTACK ON THE U.S. CAPITOL:
* * * *, * * * *
Sean Tonolli, Senior Investigative Counsel
* * * *, * * * *
* * * *, * * * *
* * * *, * * * *
* * * *, * * * *
----------
Mr. TONOLLI. So we are on the record. Today is October 14,
2021. The time is 10:00 a.m. We are convened in * * * * for the
deposition of Stephen K. Bannon to be conducted by the House
Select Committee to Investigate the January 6th Attack on the
United States Capitol.
My name is Sean Tonolli. I am the designated Select
Committee staff counsel for this proceeding. And I'd ask
everyone else to please go around the room and introduce
themselves.
* * * *. * * * *.
* * * *. * * * *.
* * * *. * * * *.
* * * *. * * * *.
* * * *. * * * *.
Mr. TONOLLI. For the record, it is 10:01 a.m., and Mr.
Bannon is not present. The person transcribing this proceeding
is the House stenographer and notary public authorized to
administer oaths.
On September 23, 2021, Chairman Bennie Thompson issued a
subpoena to Mr. Bannon both to produce documents by October 7,
2021, and to testify at a deposition today, October 14, 2021,
at 10:00 a.m.
The subpoena is in connection with the Select Committee's
investigation into the facts, circumstances, and causes of the
January 6th attack and issues relating to the peaceful transfer
of power, in order to identify and evaluate lessons learned and
to recommend to the House and its relevant committees
corrective laws, policies, procedures, rules, or regulations.
This inquiry includes examination of how various
individuals, to include Mr. Bannon, and entities coordinated
their activities leading up to the events of January 6, 2021.
Mr. Bannon has not produced any documents or appeared today to
testify.
I will mark as exhibit 1 and enter into the record the
Select Committee's subpoena to Mr. Bannon, included with which
are the materials that accompanied the subpoena, namely, a
letter from the chairman, a document scheduled with
accompanying production instructions, and a copy of the
deposition rules.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. TONOLLI. I will mark as exhibit 2 and enter into the
record an email exchange between * * * * and Robert Costello,
Mr. Bannon's attorney.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. TONOLLI. On September 23, 2021, * * * * emailed Mr.
Costello the subpoena to Mr. Bannon and the accompanying
materials included in exhibit 1 and asked whether Mr. Costello
was authorized to accept service of the subpoena on Mr.
Bannon's behalf.
Mr. Costello replied to * * * * on September 24, 2021, that
he was authorized to accept service of the subpoena on Mr.
Bannon's behalf.
I will mark as exhibit 3 and enter into the record a letter
Mr. Costello sent to * * * * on October 7, 2021.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. TONOLLI. In sum and substance, the letter states that
Mr. Bannon is, ``legally unable to comply with your subpoena
requests for documents and testimony,'' because President
Trump's attorney informed Mr. Costello by letter, dated October
6, 2021, that President Trump is invoking executive privilege,
``to the fullest extent permitted by law,'' and instructing Mr.
Bannon not to provide documents or testimony, ``concerning
privileged material,'' in response to the Select Committee's
subpoena.
I will mark as exhibit 4 and enter into the record a letter
that Chairman Thompson sent to Mr. Costello in response on
October 8, 2021.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. TONOLLI. And I'll take a brief pause to recognize that
Mr. Schiff has joined us.
Turning back to the letter that Chairman Thompson sent on
October 8th, in sum and substance, the response states that Mr.
Costello's, ``letter relies on an apparent instruction from
former President Donald Trump that appears limited to
requesting that Mr. Bannon not disclose privileged information.
Despite this limited instruction, your letter takes the
inappropriate position that Mr. Bannon will not comply with any
request for information or testimony sought by the Select
Committee. Moreover, Mr. Trump's stated `intention to assert
those executive privileges' that may or may not belong to him
does not provide a legal basis for Mr. Bannon's refusal to
comply with the subpoena.''
The letter states the Select Committee's expectation that
Mr. Bannon would appear today for the deposition and respond
fully to the Select Committee's questions and to state for the
record any objections to particular questions for the Select
Committee's consideration and possible judicial review.
The letter concludes by advising that the Select Committee
will view Mr. Bannon's failure to respond to the subpoena as,
``willful noncompliance,'' that would force the Select
Committee to consider invoking the contempt of Congress
procedures entitled to United States Code, sections 192 and
194, which could result in a referral from the House to the
Department of Justice for criminal charges as well as the
possibility of a civil action against Mr. Bannon personally to
enforce the subpoena.
I will mark as a final exhibit, exhibit 5, and enter into
the record a reply letter that Mr. Costello sent to Chairman
Thompson, the evening of October 13, 2021.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. TONOLLI. In sum and substance, the letter reiterates
that Mr. Bannon is abiding by President Trump's invocation of
executive privilege and direction to Mr. Bannon not to produce
documents or testify.
In support of Mr. Bannon's position, the letter cites
several judicial opinions on executive privilege, including a
2019 decision of the United States District Court in Washington
in the case of Committee on the Judiciary v. McGahn.
In particular, the letter cites the following sentence from
the court's opinion: ``The President can certainly identify
sensitive information that he deems subject to executive
privilege, and his doing so gives rise to a legal duty on the
part of the aide to invoke the privilege on the President's
behalf when, in the course of his testimony, he is asked a
question that would require disclosure of that information.''
However, Mr. Bannon is not here today to assert executive
privilege on a question-by-question basis. He chose instead not
to appear at all, just as he chose not to produce any documents
at all or even a log of responsive documents that he is
withholding based on the claim of executive privilege.
With that, I will note for the record that it is 10:06
a.m., and Mr. Bannon still has not appeared or communicated to
the Select Committee that he will appear today as required by
the subpoena.
Accordingly, the record is now closed as of 10:06 a.m.
[Whereupon, at 10:06 a.m., the deposition was concluded.]
[all]