[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

======================================================================

 
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]