Before and after a federal judge sentenced ex-White House strategist Steve Bannon to four months behind bars, several conservative politicians and talking heads circulated the name of Eric Holder, the first attorney general to be held in contempt of Congress.
A decade earlier, the then-Republican led House of Representatives overwhelmingly voted to find Holder in contempt for his refusal to produce some confidential Department of Justice documents about Operation Fast and Furious.
As emphasized by U.S. District Judge Carl Nichols — a Donald Trump appointee — Bannon did neither.
For CNN legal analyst Jennifer Rodgers, a former prosecutor with the Southern District of New York, that’s what sets Bannon’s case away from the fold.
“The most obvious difference between what Steve Bannon did — and was sentenced and convicted for — and anyone else that people are raising as a point of comparison is that Bannon did absolutely nothing to comply with the subpoena at any point,” Rodgers noted. “He didn’t negotiate. He didn’t turn anything over. He didn’t appear to take the Fifth or assert any other privileges. I mean, he literally thumbed his nose at the process the entire time, and made entirely clear that that’s what he was doing. So he didn’t even make any bones about the fact that he was refusing to comply with this process, from the get-go, and at all times, even claiming that the whole process was illegitimate.”
His attorney David Schoen, who was Trump’s lawyer for the second impeachment, struck the same defiant tone on behalf of his client at sentencing.
“There is nothing here to deter,” Schoen said. “There is nothing here to punish.”
Schoen claimed that Bannon was taking a “principled” stand based on his belief that he was shielded by executive privilege, but he was not in the executive branch at the time. Neither was Trump. Holder, by contrast, had protected documents over which then-President Barack Obama invoked privilege.
Former federal prosecutor Mitchell Epner, now a partner at Rottenberg Lipman Rich PC, noted that there is an even more salient contrast between Bannon and Holder.
“The single most important difference between the Eric Holder situation and the Steve Bannon situation is that Steve Bannon was convicted by a jury of his peers of two counts of contempt of Congress,” Epner noted. “Eric Holder was never criminally charged, and the reason he was never criminally charged is that when it went in front of Judge Amy Berman Jackson. She held that the House committee’s contempt citation was ‘entirely unnecessary.'”
Judge Jackson issued that ruling in 2014, some two years after the House GOP’s citation.
“She said that because the dispute over the production of nonprivileged documents was resolved with those documents being turned over,” Epner noted.
The fact that the case was never charged because it was adjudicated, in Holder’s favor, nearly a decade ago hasn’t stemmed the flow of analogies. Holder’s name trended on Twitter after Bannon’s sentencing, with critics from the political right claiming that the contrast showed a double standard.
None other than the leader of the Fast and Furious investigation, Rep. Darrell Issa (R-Calif.), helped spread that comparison.
“When Eric Holder and Lois Lerner defy Congressional subpoenas, the DOJ does nothing,” Issa tweeted on Oct. 17. “But the DOJ goes after Republicans with indictments and prison.”
Issa questioned Holder before the House Oversight and Government Reform Committee, when he alleged a “cover up” into the widely criticized operation by Justice Department subcomponents to facilitate illegal gun sales to people connected to Mexican drug cartels. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) initiated that operation in an effort to monitor both parties to the transaction, but as chronicled in an inspector general report, the plan backfired: nearly 2,000 firearms were illegally purchased for $1.5 million, and weapons from the sale were linked to the murder of U.S. Border Patrol Agent Brian Terry.
Bannon never presented himself to the Jan. 6th Committee at all as to his role in the deadly breach of the Capitol. The bipartisan panel never had the chance to question him about a host of topics, including his apparent foreknowledge of the attack displayed on the Jan. 5, 2021, broadcast of his podcast War Room.
“All Hell is going to break loose tomorrow,” Bannon predicted, the day before the Capitol attack.
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