House Republicans keep trying to rewrite history about the Jan. 6 Capitol riot, with the latest effort directed at throwing the tiniest bone to Steve Bannon while he waits behind bars.
The far-right media personality is currently serving four months at a federal prison in Connecticut for ignoring a congressional subpoena. (The House’s Jan. 6 Committee sought Bannon’s testimony while it investigated the attack on the Capitol building, and Bannon refused to sit for an interview.)
But now, the GOP wants to bolster one of Bannon’s legal arguments without actually siding with him.
On Monday, the full D.C. circuit court formally received an amicus brief from the House of Representatives that does something curious: It takes the complete opposite stance on whether the Jan. 6 Committee was legitimate, thus calling into question whether Bannon should have been prosecuted for ignoring the investigative panel’s subpoena.
The court filing is, however, carefully worded. It reads more like a jab at former House Speaker Nancy Pelosi than a legal treatise meant to get Bannon out of prison.
“It doesn’t really help him as a legal matter. It’s nothing more than optics,” said Michelle Kallen, an attorney who was once Virginia’s solicitor general and is intimately familiar with the Bannon case because she later represented the Jan. 6 Committee.
She stressed that the GOP is being careful not to throw its full weight behind the Trump ally by explicitly stating that the Jan. 6 Committee’s subpoenas were invalid. Instead, the House’s top three Republicans have merely taken the stance that the committee was technically put together improperly, a move that just barely cracks the door open to keep one of Bannon’s defenses alive while the case is on appeal.
In essence, Republicans are still upset that the congressional investigation into the attack on the Capitol moved forward with self-selected Republicans Liz Cheney and Adam Kinzinger (who’ve now both left public office) instead of being held up when GOP leadership refused to appoint Republicans to the panel.
While Bannon fought the case in the run-up to the trial, his defense lawyers argued that “the select committee that issued the subpoena to Mr. Bannon was not composed consistent with the authority … by the full House.” That position meant that “because its membership was not authorized, the subpoena to Mr. Bannon was not valid, and the indictment must be dismissed.”
The House resolution that initiated the investigation indeed stated that “the Speaker shall appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.” But when then-Minority Leader Kevin McCarthy refused to offer up Republican appointees, the committee moved forward with only nine members. In court, while Bannon faced trial, the Democrat-controlled House took the position that “the resolution does not require that all thirteen members be appointed in order for the select committee to function,” claiming that they were “aware of no rule or law” that specifically called for “that precise number.”
That legal stance came from the congressional chamber’s in-house attorneys, who are directed by a panel of the five top representatives called the Bipartisan Legal Advisory Group. But now Republicans are in charge and want to clear the record.
The Republican-led House’s amicus brief this week is a highly technical “well, actually.” In its view, Cheney was the panel’s “vice chair,” not its “ranking member.” Therefore, the entire committee was dubious.
“House Resolution 503 likewise required the chairman to consult with the ranking minority member before issuing any subpoena. In the House’s view, none of these things happened,” lawyers wrote. “Representative Cheney was not leading the minority on the select committee because there was no separate minority to lead.”
House Speaker Mike Johnson, Majority Leader Steve Scalise, and Majority Whip Tom Emmer recently outvoted Minority Leader Hakeem Jeffries and Minority Whip Katherine Clark, commissioning the chamber’s lawyers to reverse their previous stance in court papers. This comes at a time when the lawyers representing the 118th Congress are already involved in at least nine federal cases, including several stemming from the belligerent boxing matches initiated by Rep. Jim Jordan’s MAGA crusades against the Manhattan district attorney and Attorney General Merrick Garland.
Kallen pointed out that the House’s lawyers had other matters to attend to when they were directed to weigh in on the Bannon case.
“They’ve gone out of their way to expend limited resources to put a stake in the ground that is really hypothetical,” she said.
Doug Letter, the former House general counsel who oversaw that office in the previous Congress, pointed out that any attempt to rewrite history doesn’t change the basic facts. Like Trump ally Peter Navarro, Bannon made a high-stakes gamble when he chose to ignore a congressional subpoena.
“When Bannon and Navarro got the subpoenas, they didn’t say, ‘I’m not going to do this because you didn’t have a properly appointed ranking minority member.’ Navarro wouldn’t talk to us at all. Only later, he said, ‘Executive privilege.’ And the president hadn’t claimed it,” Letter told NOTUS.
“And Bannon just blew us off and said, ‘Go away,’” Letter added. “They thought, ‘We’re working with Donald Trump, and I can ignore anything the House of Representatives says.’”
Navarro, who was also convicted and saw his appeals fail as well, was in federal prison until he was released on July 17. Bannon is due out a week before the November election.
Letter also pointed out that the new House leadership’s take on the Jan. 6 Committee’s structure and authority can’t fairly call into question the subpoenas or the subsequent prosecutions. After all, he said, the full House voted to refer the matter to the DOJ. After that, Letter had committee staffers talk to the FBI and federal prosecutors, who made their own determination that Bannon and Navarro had indeed broken the law.
“The committee was set up, issued subpoenas and, at that point, the crime had already been committed,” Letter said.
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Jose Pagliery is a reporter at NOTUS.