In the 135 days that have passed since the House of Representatives established a select committee to investigate the worst attack on the US Capitol since Sir George Cockburn ordered the Burning of Washington in 1814, associates of former president Donald Trump have been able to take comfort in the fact that no person has been criminally prosecuted for contempt of Congress in nearly four decades.
Though the American legislature has long had the inherent authority to hold recalcitrant witnesses in contempt – including by arrest and detainment – the practice over the last century has been for Congress to “refer” contempt charges to the Department of Justice for prosecution under a rarely-used section of the United States Code.
And while there have been many such referrals made over the years, the Justice Department hasn’t acted on any of them since 1983, when then-US Attorney for the District of Columbia Stanley Harris announced an indictment of Environmental Protection Agency official Rita Lavelle. Ms Lavelle had defied a subpoena from House Energy and Commerce Committee Chairman John Dingell, who responded by filing a resolution holding her in contempt. The House voted to approve the citation 413-0, and the Reagan administration official was charged a week later.
But in the end, the Justice Department lost that case, and in the decades since a contempt referral from Congress was something that might bring a witness a few days of bad headlines, but not the stress and jeopardy that comes with a criminal prosecution.
Those days, however, appear to be over and done with.
With the announcement that a District of Columbia grand jury had indicted ex-Trump White House adviser Steve Bannon on two charges of contempt of Congress, Attorney General Merrick Garland has put teeth back in Congress’ ability to enforce subpoenas – and may have put an end to hopes in the minds of many in former president Donald Trump’s inner circle that they can simply thumb their noses at the Democrat-led committee until their party retakes the House and quashes the investigation into what Mr Trump tried to do to keep Congress from certifying President Joe Biden’s electoral college win.
Mr Bannon, who served for approximately seven months as Mr Trump’s chief strategist, is one of a number of the twice-impeached ex-president’s confidantes who have decided that heeding the desires of their old boss is a safer bet than complying with a congressional subpoena and risking exile from his good graces.
The former Breitbart News chairman cited what legal scholars say is a more-than-dubious claim of executive privilege in his refusal to comply with the committee’s demands. So has Mark Meadows, the former North Carolina congressman who was Mr Trump’s chief of staff during the waning days in office when he and his allies tried everything – including inciting a violent mob – to prevent him from having to surrender the powers of the presidency.
Other ex-Trump administration officials who’ve heeded Mr Trump’s wishes and bet their freedom on Mr Garland’s desire to keep the Justice Department wading into what will undoubtedly ugly battle include Stephen Miller, the former Trump speechwriter and immigration policy adviser, and Jeffrey Clark, the ex-assistant attorney general who tried to bully then-acting Attorney General Jeffrey Rosen into signing a letter meant to give GOP-controlled state legislatures in states Mr Biden won reason to override the will of their voters.
Mr Meadows, who once served on the powerful House Oversight Committee and regularly excoriated Obama administration officials who he felt were thumbing their noses at the legislative branch’s authority, has to date used negotiations with the committee to drag out the compliance process. His attorney has told the committee that he won’t do anything to comply until ordered to do so by a court.
In a statement, Select Committee Chairman Bennie Thompson and Vice-Chair Liz Cheney said their former colleague’s actions “will force the Select Committee to consider pursuing contempt or other proceedings to enforce the subpoena”.
Mr Thompson and Ms Cheney said the ex-Trump adviser and his colleagues “won’t prevail in stopping the Select Committee’s effort getting answers for the American people about January 6th, making legislative recommendations to help protect our democracy, and helping ensure nothing like that day ever happens again”.
With Mr Bannon set to turn himself in and be arraigned on Monday, Americans who’ve fretted over whether the rule of law can survive can have a bit more faith that they will be able to keep that promise, and Mr Meadows – and Mr Trump – have a bit more to fear.