Nancy Pelosi’s Subpoena Trap

“Since my first day in office, I have promised Justice Department employees that together we would show the American people by word and deed that the department adheres to the rule of law, follows the facts and the law, and pursues equal justice under the law. Today’s charges reflect the department’s steadfast commitment to these principles.”

So said Attorney General Merrick Garland as he announced the indictment of Stephen Bannon on two counts of contempt of Congress stemming from his refusal to comply with a subpoena issued by the House select committee investigating the January 6, 2021, Capitol Hill protest. As with so much else uttered by Garland, his announcement has no basis in fact or law. To the contrary, far from upholding a federal prosecutor’s legal and ethical obligation to seek the truth and to do justice under the law, the charges against Bannon, a former advisor to President Donald Trump, are the tawdry and illicit product of a Justice Department committed to serving the nakedly partisan political interests of the Democrat Party.

In its campaign to re-write Trump’s legacy, the “House Select Committee to Investigate the January 6 Attack on the United States Capitol” has abandoned the rule of law and implemented an unprecedented and corruptly illegal process calculated to ensnare, incarcerate, and bankrupt former members of his administration. And, to its everlasting shame and disgrace, with Bannon’s indictment, Garland’s Justice Department has become a co-conspirator in this dishonest political scheme.

As will be explained in detail, the January 6 Committee is illegally constituted, has no legitimate legislative predicate for conducting its investigation, and is issuing illegally broad and abusive subpoenas for materials and evidence over which Trump has asserted executive privilege. But, instead of litigating the issue of privilege with the former president, the Democrat House majority referred Bannon — who is bound by Trump’s claim of privilege — to Merrick Garland’s eager and willing Justice Department to be prosecuted for criminal contempt of Congress.

So it is that Bannon faces criminal prosecution for honoring Trump’s assertion of executive privilege. Not only does he face financial ruination by way of legal costs, he must also seek justice in the District of Columbia courts where Trump-supporting Republicans are a despised and endangered species that must be eradicated.

And, of course, what is happening to Bannon is only the beta version of what awaits other Trump advisors who have been and will be subpoenaed by the January 6 Committee.

Welcome to the wonderland of the Democrats’ neo-Stalinist legal order.

If Garland’s attack dogs had been even slightly interested in conducting a real investigation before charging Bannon, they would have learned that the subpoenas served on him were illegally issued, unenforceable, and implicated issues of executive privilege that preclude Bannon from producing documents and testifying.

In the first instance, the January 6 Committee is not legally constituted since it does not comport with its authorizing resolution. House Resolution 503 instructed House Speaker Nancy Pelosi to appoint 13 members — seven Democrats and six Republicans — to the committee. In addition to a Republican ranking member, five of those members “shall be appointed after consultation with the minority leader.”

Pelosi appointed the Democrat chairman, Bennie Thompson, and six Democrat members. But, when House Minority Leader Kevin McCarthy recommended a Republican ranking member and five other Republicans to serve on the committee, Pelosi — in what she publicly conceded was an “unprecedented decision” — appointed none of them. Instead, she appointed only two Republicans: Reps. Adam Kinzinger and Liz Cheney, both of whom had voted for House Resolution 503. That left four vacancies on the Republican side.

In short, thanks to Pelosi’s “unprecedented” action, none of the Republican committee members were appointed consistent with the committee’s authorizing resolution. The January 6 Committee is not duly constituted and has no authority to conduct business. Consequently, a serious and judicially cognizable issue exists as to whether the committee’s subpoenas are legally invalid and unenforceable.

More importantly, Congress has no legal authority to issue subpoenas to enforce the law or simply to expose purported wrongdoing. Under the Constitution, law enforcement and the punishment of claimed illegal actions is limited to the executive branch. Put another way, neither Congress nor any committee thereof can conduct an ersatz grand jury investigation.

Instead, Congress’ investigative powers are limited and strictly tethered to its legislative function. Any congressional investigation must be for the purpose of considering or crafting legislation.

But the January 6 Committee’s authorizing resolution does not identify any legislative purpose. Even worse, the committee’s Chairman Thompson and Vice-Chair Liz Cheney have publicly declared that the purpose of their investigation is to ensure that “those responsible are held accountable” and to “tell the complete story of the unprecedented and extraordinary events of January 6,” and to “get answers for the American people about what happened on January 6.”

Say what? Are these legislators looking to pass remedial laws or avengers on a mission of political retribution?

Since the committee’s subpoenas serve no legislative purpose, they constitute an illegal and unconstitutional usurpation of executive law enforcement power. Or, put another way, since the subpoenas are ill-conceived, illegal, and unenforceable, no one can be validly held in contempt for failing to comply with them.

And then, last but not least, the subpoenas seek documents and testimony that are subject to a claim of executive privilege by Trump. Bannon and the others who have been and will be subpoenaed do not have the legal authority to waive that privilege. Neither do they have the authority to produce documents or testify to matters over which Trump has asserted privilege.

Executive privilege belongs to the president, and the legal issues surrounding its assertion and waiver are numerous and complex. For example, which president can waive the privilege asserted over matters that transpired during the Trump administration? Trump or Biden? Biden claimed to have waived executive privilege as to some but not all of the subpoenaed documents. But whose waiver controls here? And what is the extent and validity of Biden’s limited waiver? These and many other related legal issues remain open and subject to highly contentious litigation.

So what is a recipient of a January 6 Committee subpoena to do? He has no authority to waive the privilege on behalf of the president but, if he doesn’t effectively do that by complying with the subpoena, he is subject to being held in contempt and, like Bannon, criminally prosecuted.

Despite the January 6 Committee’s illegal composition, lack of legislative purpose, and illegal usurpation of the law enforcement function — all of which undermine the validity and enforceability of its subpoenas as well as the claim of executive privilege which, pending a resolution by the courts, precludes compliance with those subpoenas — Merrick Garland and his attack dogs have short-circuited the process by criminally charging Steve Bannon. In doing so, they have, to put it kindly, swept aside any consideration of fairness, due process, or seeking the truth.

Far from Garland’s high-sounding claim that Bannon’s indictment reflects a “steadfast commitment” to the facts and the law, his agency’s actions in defiance of the massive illegalities and legal issues that undermine any valid basis for those charges more closely approximate the Queen of Hearts’ perverse order of procedure in Alice’s Adventures in Wonderland:

“No, no! Sentence first — verdict afterwards!”

George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net and may be reached by email at kignet@outlook.com.

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Nancy Pelosi’s Subpoena Trap