Few people have made their names in Washington more differently than Attorney General Merrick Garland and the Republican political operative Steve Bannon. Garland, a sixty-eight-year-old former federal judge, has built his career on carefully following fact and legal precedent. Assiduously even-handed, despite being cheated out of a chance at a seat on the Supreme Court by Mitch McConnell, Garland is, some commentators worry, fair-minded to a fault. Bannon, a sixty-seven-year-old former investment banker and movie producer, is a founding father of Trumpism. As Donald Trump’s campaign manager and chief White House strategist, he mastered the art of the performative political lie—an emotive false claim that undermines Americans’ faith in public institutions, plays on their fears and prejudices, and creates a fervent voter base that turns out on Election Day.
In the days and weeks ahead, Garland must decide whether to criminally prosecute Bannon, a step that could result in one of Trump’s top allies being sent to jail. Last Thursday, the House held Bannon in contempt for refusing to testify before its select committee investigating the January 6th insurrection. Until the nineteen-thirties, Congress itself intermittently jailed people who failed to comply with its subpoenas, having the sergeant at arms arrest and detain those who obstructed investigations. Since then, Congress has asked the Justice Department to enforce its subpoenas, and that means federal prosecutors in Washington overseen by Garland will decide if enough evidence and legal precedent exist to criminally charge Bannon.
Until now, the Justice Department has generally declined to prosecute former Administration officials who defied Congressional subpoenas, such as George W. Bush’s White House counsel Harriet Miers and Obama’s Attorney General Eric Holder. But the allegations against Trump and Bannon are unprecedented. No Attorney General in American history has faced such a case: a former President, his onetime White House strategist, and their allies stand accused of inciting a mob to storm the Capitol and prevent Congress from certifying that President’s electoral defeat.
Garland, who recently told my colleague Jane Mayer that the Attorney General’s duty is to enforce the law equitably, faces what is likely the toughest decision of his tenure. Jack Goldsmith, a Harvard law professor who served as a senior Justice Department official during the George W. Bush Administration, predicted that Garland will be criticized for whatever action he takes, saying, “Both prosecuting contempt and not doing so have downsides and will invite criticism.”
Last week, Representative Liz Cheney, the vice-chair of the January 6th committee, said on the House floor that the panel is investigating a plot by Trump, Bannon, Trump’s legal advisers Rudy Giuliani and John Eastman, and “many others” to “reverse the outcome of the 2020 election.” She noted that Bannon, in the weeks after the 2020 election, was “deeply involved” in Trump’s Stop the Steal campaign, which falsely claims that the former President won last November. Bannon, she added, urged Trump to “try to stop the counting of the Electoral College ballots” and was present with other Trump operatives in a “war room” the day before the riot. She has also said that the evidence suggests that “President Trump was personally involved in the planning and execution of January 6th.”
Democrats fear that Garland’s adherence to legal precedent and his desire to have the department appear impartial could inadvertently allow Bannon to cover up evidence of Trump’s role in the insurrection. Last Thursday, in Garland’s first appearance before the House Judiciary Committee since taking office, Representative Jerrold Nadler, of New York, the committee chair, told the Attorney General, “It is not enough just to right the ship. As the chief law-enforcement officer of our nation, it is also your responsibility to help the country understand and reckon with the violence and the lawlessness of the last Administration.” Garland, true to form, when asked during the hearing if the department would prosecute Bannon, embraced impartiality. “The Department of Justice will do what it always does in such circumstances,” he said. “It will apply the facts and the law and make a decision consistent with the principles of prosecution.”
President Biden has also pressured Garland. Earlier this month, in response to a question from a reporter about whether he believed that the Justice Department should prosecute witnesses who defy the January 6th committee’s subpoenas, Biden said, “I do. Yes.” (He later tried to walk back that comment.) In an unusual statement issued the same day, the Justice Department’s top spokesman, Anthony Coley, said that the President’s views would not impact its decision. “The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop.”
Bannon, for his part, would likely make the most out of being prosecuted. Such a step would reinforce the latest messaging from Trump and his allies: that Biden, not Trump, is an authoritarian leader trying to punish his political enemies. They claim that it’s part of a far-left, big-government agenda, along with forcing Americans to get COVID vaccinations—and stripping Americans of their freedoms. In last week’s House hearing, Trump’s allies on the committee pounced on Garland’s recent issuing of a memo instructing the F.B.I. to monitor threats of violence at school-board meetings. The memo fed directly into a G.O.P. talking point that suggests Biden is trying to silence dissent from parents opposed to the teaching of critical race theory in public schools. In a line of questioning that seemed designed to go viral, Jim Jordan, Republican of Ohio, asked Garland, “Will F.B.I. agents be attending local school-board meetings?” Garland replied, “No,” and added that the department has no intention of limiting parents’ free speech. “This is not about what happens in school-board meetings,” he said. “It is only about violence and threats of violence aimed at school employees and officials.” Steve Chabot, Republican of Ohio, echoed Jordan’s narrative, telling Garland, “We don’t need you, your Justice Department, or the F.B.I. trampling on the rights of American parents.”
Such attacks are Trumpian—they are false or vastly exaggerate what is occurring—but they continue to sway Republicans, a growing number of whom, according to polls, believe that Trump won the 2020 election. The political danger for Biden is that such messaging could also influence key suburban swing voters and undermine the central premise of his Presidency: that making decisions based on fact, implementing law and policy in a neutral manner, and delivering good governance will garner votes. As Biden’s attempt to enact his domestic agenda drags on, his plunging approval numbers suggest that showmanship, for now, is outperforming probity.
What, then, is Garland to do about Bannon? If the Attorney General approves the prosecution, the Justice Department will likely prevail in court. As my colleague Amy Davidson Sorkin wrote, Bannon’s claim to “executive privilege”—a President’s legal right to have confidential conversations with aides kept private—is specious. (When the Capitol was stormed, Bannon had not been a White House official for more than three years.) Conservative legal scholars agree. “Bannon does not have a viable executive-privilege argument to make,” Jonathan Turley, a professor at George Washington University Law School, told me. “It’s hard to discern any credible argument he can make to a court.” But Turley and Goldsmith both pointed out that prosecuting Bannon could embroil the department in partisan politics. “If he does prosecute, he will be accused of kowtowing to President Biden,” Goldsmith said, referring to Biden’s public call for charges to be brought. “Garland must also consider that a prosecution here threatens to invite tit-for-tat contempt prosecutions in similar contexts across different Administrations.”
David Laufman, a former senior Justice Department official, thinks that if career prosecutors in Washington recommend that Bannon be charged, Garland should promptly approve an indictment and prosecution. “There is a particular urgency to this congressional investigation, given the threat to democracy that was manifested on January 6th and continues today,” he said. Garland, too, is subject to our current hyper-politicized era. Whatever his decision, he will be criticized by one side or the other: one will see Bannon as a right-wing provocateur brought to justice; the other will see him as a victim of tyrannical leftists. Our domestic cold war will rage on.
