Thread by @MuellerSheWrote

THREAD: I've now heard from multiple sources that the DoJ might be considering delaying a Bannon indictment for criminal contempt in order to secure a ruling from the courts affirming that Bannon's testimony has a legislative purpose. Now, let me be clear about a few things... 1/

First, there is nothing confirming that this is what will happen. I would strongly disagree with a months-long delay to secure a ruling on what we already know to be true: that the committee has a legislative purpose. BUT... 2/

It is a not totally stupid defense that the Bannon team would use: "If the congress does not have prosecutorial power, what possible legislative purpose exists to justify the compelled testimony of Steve Bannon?" 3/

Whether that defense is full of shit or not, it is the defense that trump successfully used to run out the clock in the House Ways and Means tax battle. 4/

Ways and Means doesn't actually need a legislative purpose to get someone's tax returns. They could tell a court "Your honor, we simply don't like his fuckin' face" and the IRS is supposed to hand it over. 5/

Trump also used the "legislative purpose" defense in his court battle to block the Mazars documents from being handed over to the House. He eventually lost, but ran out the clock. So regardless of whether there is a purpose, this defense has worked for them in the past. 6/

Garland is a zealous T-crosser and I-dotter. But if he seeks a court ruling confirming the legitimacy of the 1/6 committee or the Bannon testimony specifically, that risks undermining congressional oversight (IMHO). Especially if he doesn't intend to criminally investigate 7/

Additionally, these are rumors and haven't been fleshed out, but I wanted you to know about it. Hugo Lowell mentioned it in our interview on @dailybeanspod yesterday and since then, i've heard about this possibility from other sources. 8/

It makes me wonder if Laurence Tribe hadn't heard the rumors, too, prompting this extremely blunt tweet about his former Harvard law student: 9/

https://twitter.com/tribelaw/status/1451291478462959624?s=20

If @TheJusticeDept doesn't swiftly present the case to a grand jury and pursue an indictment of Steve Bannon, that would indicate to me that the AG is risking democracy in the name of extreme - and in my opinion unnecessary - caution. 10/

But for devil's advocates' sake: If Garland doesn't secure a court ruling that the Bannon subpoena is legit, he could risk an indictment being dismissed by a court, or a loss at trial (which happened the last time we did this in 1983), or he could risk... 11/

... a judge telling him to go back and get a ruling from a court before they move forward with trial - further delaying it. So my question is why doesn't @TheJusticeDept simply seek an OLC memo saying the testimony and the committee have legislative purpose? 12/

Given Garland's decision to hold back half a Barr memo for super-janky "deliberative process privilege" reasons earlier this year, it's not like he would have to release any information to anyone about the development of such an opinion, 13/

and it's not like the last AG didn't whip up a ton of OLC memos for ILLEGAL shit. This one would actually be based on the rule of law. So my recommendation is for @TheJusticeDept to draft an OLC memo about the legitimacy of the 1/6 committee, and INDICT STEVE BANNON /END

PS: Yes I know the grand jury indicts, but DoJ presents the case and must take it to the grand jury in the first place. I just ran out of characters in that last tweet.