The letter concludes by advising that the select committee will view Mr. Bannon's failure to respond to the subpoena as, quote, "willful noncompliance," close quote, that would force the select committee to consider invoking the contempt of Congress procedures entitled to United States Code, sections 192 and 194, which could result in a referral from the House to the Department of Justice for criminal charges as well as the possibility of a civil action against Mr. Bannon personally to enforce the subpoena.
I will mark as a final exhibit, exhibit 5, and enter into the record a reply letter that Mr. Costello sent to Chairman Thompson the evening of October 13, 2021.
[Bannon Exhibit No. 5
Was marked for identification.]
In sum and substance, the letter reiterates that Mr. Bannon is abiding by President Trump's invocation of executive privilege and direction to Mr. Bannon not to produce documents or testify.
In support of Mr. Bannon's position, the letter cites several judicial opinions on executive privilege, including a 2019 decision of the United States District Court in Washington in the case of Committee on the Judiciary v. McGahn.
In particular, the letter cites the following sentence from the court's opinion, quote: "The President can certainly identify sensitive information that he deems subject to executive privilege, and his doing so gives rise to a legal duty on the part of the aide to invoke the privilege on the President's behalf when, in the course of his testimony, he is asked a question that would require disclosure of that information," close quote.
However, Mr. Bannon is not here today to assert executive privilege on a question-by-question basis. He chose instead not to appear at all, just as he chose not to produce any documents at all or even a log of responsive documents that he is withholding based on the claim of executive privilege.
