House committee investigating Jan. 6 riot must make Steve Bannon

The House select committee investigating the Jan. 6 attack on the U.S. Capitol has issued subpoenas seeking testimony and documents from four Trump administration officials: former presidential adviser Steve Bannon, former chief of staff Mark Meadows, former deputy chief of staff Dan Scavino and former Pentagon official Kash Patel.

The committee sent all four men letters making clear each has information “relevant to understanding important activities that led to and informed the events at the Capitol on January 6, 2021, and relevant to former President Trump’s activities and communications in the period leading up to and on January 6.” These subpoenas likely will set off a chain of events that will say much about the pace and direction of the committee’s investigation but also about the future health of our democracy.

During Donald Trump’s time as president, congressional subpoenas seemed to have been viewed by executive branch officials as something akin to party invitations that could be accepted or rejected with little or no consequence. When subpoena recipients weren’t ignoring lawfully issued congressional subpoenas entirely, they were challenging the subpoenas in court, making baseless claims of nonexistent privileges and immunities and weaponizing the delay built into the court system in an attempt to run out the clock. Former White House counsel Don McGahn battled a congressional subpoena in court for more than two years and ultimately won the war of attrition.

With this new round of congressional subpoenas, we will now see if Congress and the courts have learned anything from that time or if they will again let witnesses ignore their subpoenas or exploit court delays in an effort to run out the clock.

Here are some of the issues that will arise as a result of these four subpoenas.

Some of the individuals may assert a claim of executive privilege in an attempt to defeat the subpoena. Indeed, Trump has already threatened to invoke executive privilege to block the select committee’s subpoenas. Unfortunately for Trump, Biden, not any former president, makes the ultimate decisions regarding executive privilege questions.

Second, executive privilege does not apply to anyone who was a private citizen at the time he or she was speaking with the president. Bannon was a private citizen on and around Jan. 6, a second reason an executive privilege claim to block his testimony will fail.

Third, although it has not been directly tested in the courts, there is a strong argument that if the evidence or testimony sought by a congressional subpoena contains evidence of crime (such as plotting and executing an attempted overthrow of our democracy), then the crime-fraud exception trumps any privilege asserted to try to keep the evidence under wraps.

If witnesses refuse to honor the…