What to think about Steve Bannon's indictment

A brief history of criminal referrals for contempt of Congress.

Steven Bannon has been indicted for contempt of Congress! Here’s the document.

Rita Lavelle was the last person tried for contempt of Congress, but she wasn't convicted. (She was convicted of perjury instead and served a three-month prison sentence.)

The last person convicted of contempt of Congress and did prison time was G. Gordon Liddy. But that’s a little misleading because he did the prison time for his other Watergate crimes. On contempt of Congress, he got a suspended sentence.* Nobody's been jailed for this crime since the Supreme Court recognized the existence of executive privilege in July 1974. (Richard Helms was convicted of contempt of Congress in 1977 but let off with a fine.)

As I explained last month in the New Republic, executive privilege is a venerable-sounding principle that everybody imagines dates to the Magna Carta but actually is something Eisenhower, a nonlawyer, pulled out of his ass in 1954 to get Joe McCarthy off his back. It didn't win legal recognition until Eisenhower's vice president, Richard Nixon, invoked it during Watergate. The Supreme Court told Nixon in August 1974 that he enjoyed very limited protection from executive privilege and therefore had to turn over the White House tapes that led to his resignation one month later. But the Supreme Court also acknowledged for the first time that executive privilege was a thing. (There of course were many separation-of-powers disputes between Congress and the president before that, but no sweeping confidentiality principle like executive privilege.)

The actual term "executive privilege" was coined by George Cochran Doub, assistant attorney general for the civil division under Ike. When Doub went to his reward in 1981 his NYT obit neglected to mention that he invented "executive privilege."

But I digress.

Liddy was convicted of contempt of Congress in May 1974, two months before the Supreme Court recognized Eisenhower's and Doub's handiwork. That will probably make it harder to send Bannon to the big house than it would have been to send Liddy.

Another wrinkle is that if this goes before the Supreme Court, there's one justice who's likely to have very unhappy personal memories about contempt of Congress prosecutions. That person is Neil Gorsuch. His mother, Anne Gorsuch Burford, was administrator at the EPA under Reagan. Rita Lavelle was her henchwoman. And Burford had a nasty executive-privilege fight of her own with Congress over documents showing her lackadaisical enforcement of environmental violations by powerful companies. The Reagan administration eventually cut her loose when the revelations became too politically damaging, but not before Congress made a criminal contempt referral to DOJ about Burford herself. DOJ declined to prosecute and Congress withdrew the referral as part of a legal settlement. I don't imagine this is anything Justice Gorsuch likes to remember.

Who went to the slammer for contempt of Congress? Well there was Robert M. Shelton, Jr., imperial wizard of the Ku Klux Klan. That was in 1966.

Reaching back a bit further, though, the Hollywood Ten, now judged First Amendment martyrs, were jailed for contempt of Congress. They were: Alvah Bessie, Herbert Biberman, Lester Cole, Edward Dmytryk, Ring Lardner, Jr., John Howard Lawson, Albert Maltz, Samuel Ornitz, Adrian Scott, and Dalton Trumbo. Perhaps Bannon can take solace in this. Though doing so would mean identifying with a bunch of Communists and ex-Communists.

I can't resist relating what Billy Wilder said of the "unfriendly 10”: "Two had talent, and the rest were just unfriendly." He probably was singling out Trumbo and Lardner. I don't think Trumbo's screenplays hold up especially well but he was the most highly paid screenwriter in Hollywood. Lardner was, like his more famous father, a very gifted writer. He won an Oscar for Woman of the Year, most of which remains delightful today, and also wrote the screenplay for M*A*S*H. He was the last surviving member of the Hollywood Ten when he died in November 2000.

Ring, Jr.'s son, the journalist James Lardner, is another gifted writer, a onetime Washington Post reporter and now a frequent contributor to the New Yorker.

But now we've got rather far afield. Here, again, is my piece explaining why executive privilege is a pretty dubious legal concept.

For good measure, here’s a piece I posted yesterday for the New Republic explaining why the reconciliation bill won’t be particularly inflationary. Even Larry Summers thinks it won’t, but that didn’t keep the New York Times from making this question today’s lead story. (If you read the story, which I don’t feel like linking to, to the end you’ll discover that the Times thinks its impact on inflation will be trivial and fleeting.)

On Nov. 16 I posted an article for the New Republic going into congressional subpoenas and executive privilege and who testified before Congress and who didn’t in greater detail.

*I got this wrong in an earlier version of this column, but now it’s corrected.