House Republicans may soon look to the case of Stephen Bannon in their effort to hold FBI Director Christopher Wray in contempt of Congress.
GOP lawmakers say they plan to move forward with a contempt of Congress vote as soon as next week. If successful, that would result in a criminal referral to the Department of Justice, which would then decide whether to seek charges against Wray.
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When the Justice Department faced the decision to indict Bannon, a onetime adviser to former President Donald Trump, over the same type of referral, the agency moved ahead with a case that Republicans are preparing to cite as a precedent.
House Republicans have accused Wray of intentionally stalling multiple investigations. Their frustrations came to a boiling point this week when the FBI blew through the latest deadline to provide a document that contains the details of an alleged scheme involving then-Vice President Joe Biden and an unnamed foreign national.
Oversight Committee Chairman James Comer (R-KY) said Wray had given lawmakers “the runaround” for three weeks regarding the document. He said patience had run out with the FBI leader, even though Wray had scheduled a phone call about the issue with Comer and Sen. Chuck Grassley (R-IA) for Wednesday.
Comer hinted that the Bannon precedent will serve as a guide in the pursuit of a referral for Wray.
“It’s going to look very similar to what the Democrats did with Steve Bannon,” Comer said Tuesday of the emerging contempt case. “I mean, that was the perfect example of a congressional committee holding someone in contempt of Congress.”
Before Bannon, however, the Justice Department rarely acted on contempt of Congress referrals, said former U.S. Attorney Andrew McCarthy.
“Whether it’s a double standard if Wray is not indicted as Bannon was is debatable,” McCarthy told the Washington Examiner. “For about 40 years up until Bannon was charged (unwisely, in my view), DOJ prudently stayed out of the business of putting its law-enforcement muscle in the service of Congress’s contempt power.”
McCarthy noted that the Justice Department declined to pursue charges against other Trump-era figures who defied subpoenas from House Democrats. Former White House chief of staff Mark Meadows and his former deputy Dan Scavino, for example, did not face charges after Congress held them in contempt for not cooperating with the Jan. 6 inquiry.
The Justice Department opted not to bring contempt of Congress referrals for then-Attorney General William Barr and then-Commerce Secretary Wilbur Ross to a grand jury in 2019 after both leaders declined to cooperate with Democratic-led investigations concerning the 2020 census.
House Democrats were looking into the addition of a citizenship question to the census.
“I think the Bannon prosecution was wrongheaded; the judge precluded his defense that he believed, in reliance on counsel, that he had a right to refuse to answer questions because Trump had tried to assert executive privilege,” McCarthy said.
McCarthy noted that Republicans in the House voted to hold then-Attorney General Eric Holder in contempt of Congress in 2012, the first time such a step had been taken against a sitting Cabinet member.
The Obama Justice Department declined to prosecute Holder for declining cooperation with an investigation into a gun-running controversy known as Fast and Furious.
“You should never say never, but if I were the AG, my default position would be that DOJ should stay out of controversies between Congress and witnesses it subpoenas,” McCarthy said.
Instead, he said, Congress has other tools to punish sitting officials who flout oversight efforts, such as impeachment.
“I don’t think it’s a double standard because you’ll find that administrations of both parties have declined to prosecute contempt against members of their own parties after Congress has held them in contempt,” he added.
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The last time the Justice Department successfully prosecuted someone for ignoring congressional oversight requests was in 1974 in the aftermath of the Watergate scandal; the most recent indictment for contempt of Congress before Bannon, in 1983, resulted in an acquittal.
Still, House Republicans are likely to use the appearances of a double standard when pressing for consequences for Wray. They had argued at the time that the prosecution of Bannon was unfair, and while that case was indeed an outlier, the chances of the Justice Department acting on a criminal referral for contempt remain low.