Steve Bannon Must Be Compelled to Answer the Congressional Subpoena or Go to Jail

The Overton window cannot expand to include conspiracies--or conspirators

Hey readers! Friday, as you know, is “payday,” so there is a smaller group of us assembled today. What an excellent opportunity for a conversation! Make sure you tell me what you think about the issues I am raising today, talk to each other, and let your friends know how much fun we have here, please:


Former Trump strategist Steve Bannon (R) interviewed by Fox News host Tucker Carlson shortly after being arrested in an alleged scheme to defraud Trump supporters, September 17, 2020. Image credit: Claire Potter

Would you like to see Steve Bannon wearing an orange jumpsuit—even for a few days? I sure would. But not out of revenge—it is because as Bannon roams free, he is a clear and present danger to democracy.

I do not think prison is the answer to everything or even the answer to much. Did locking Paul Manafort up, even for the short time he spent in federal prison, undo all the damage of the Trump administration? No. Not at all. It doesn’t even undo the damage for which Manafort went to prison: because he was pardoned, a federal judge quietly ruled last February (while the rest of us were still reeling from J6) that Manafort could keep the fruits of his crimes: a Manhattan apartment, a brownstone in Brooklyn, and a Hamptons estate.

Yet, I hope very much that Steve Bannon is arrested and incarcerated until he agrees to fulfill his obligations as a citizen of the United States, accept the authority of Congress, and testify. Even if he shows up and takes the Fifth Amendment, I would be satisfied. But Bannon has got to show up. He’s got to take his medicine.

And, most importantly, Bannon has got to bend the knee to the Constitution. I am not talking about the fakey-fake Constitution that enables spreading lies on social media, arming violent white supremacists to the teeth, overthrowing legally-held elections, or demanding local control over federal matters. Instead, Bannon—and Trump—have to submit to the actual Constitution, the document that gives Congress the power to investigate presidents—and former presidents.

Perhaps you recall a crucial theme of the last presidency: the Trump administration’s insistence that political power did not rest in three equal branches—Congress, the judiciary, and the presidency—but that the presidency was superior. As a result, Trump repeatedly refused Congress’s authority over anything and everything, from investigating his actions to governing the country.

Trump hated the work that Congress might have demanded from him had he tried to legislate. But the man is not, by nature, a collaborator either. So when the Republicans failed to pass or promote any major legislation beyond cutting his taxes (Republicans would walk a mile on a bed of hot coals to give the wealthy a tax cut), Trump governed by executive order.

Trump signed 220 in four years. It is not, by the way, the most EOs, although it is a lot for one term. Nearly every president has signed more, including Jimmy Carter (also one term) and John F. Kennedy (three years.)

The difference, however, is that Kennedy and Carter passed legislation too, and many of their EOs were ceremonial. Trump’s EOs were substantive, and they replaced major legislation, primarily about immigration, federal regulations, and public lands.

So this is where I get back to why Steve Bannon needs to go to jail. What Trump did with these EO’s and his other crazy behavior was to expand what is called the “Overton window.” And his insistence that Bannon disobey a Congressional subpoena because he worked for Trump back in 2017 does as well.

Let me explain.

A term coined by libertarian policy analyst Joseph P. Overton, the Overton window is sometimes called the “window of discourse.” It describes the practical limits of a national political conversation that make some policies “popular” (lots of voter support) to “unthinkable” (fringe voter support, if that.) A second conservative thinker, Joshua Treviño of the Claremont Institute and the George W. Bush administration, postulated that there were six degrees of acceptance as ideas traveled from the margins to the political center:

The Overton window can describe progress and the forms of democratic regression we saw between November 2016 and January 2021. For example, in the 1980s, gay marriage was not only off the table; it was a culture war flashpoint. Initially, it was impossible and then, slowly, became possible for various reasons, from favorable media coverage to Supreme Court decisions.

The dynamics that the Overton window describes are not new. But they are peculiarly applicable to the Trump administration, and to Steve Bannon, for two reasons. The first is that the alt-right media world that Bannon came out of, and that made Trump president in 2016, is actively and purposely playing with the Overton window all the time. That is how Trump became president. Second, liberals should not minimize the centrality of this strategy and its popularity among extremists: a quick search on Gab or Telegram demonstrates that alt-right and white supremacist internet activists often take the name Overton as a nom de guerre.

More importantly, the 2016 campaign and the four years of the Trump presidency was an example of the Overton window in action: the idea of refusing entry to all Muslims, as Trump did within days of becoming president, shattered the window of discourse. But it was a broader strategy than that in the GOP as well. For example, Senate Majority Leader Mitch McConnell’s refusal to hold hearings on Merrick Garland broke the Overton window twice: first, when he did the thing, and then when he broke precedent to confirm a Trump nominee under precisely the same circumstances.

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Trump’s claim that Bannon and other aides can legally refuse to come before Congress when subpoenaed occurs in an Overton window that expanded dramatically, with the help of the Republican leadership, during his presidency. He has no plans to stop expanding it. Trump no longer has executive privilege as an ex-president, and while that is an important legal point, it is not the point of Bannon giving Congress the finger. During the period that Congress wishes to speak to Steve Bannon about, the weeks before the J6 insurrection intended to overthrow a legal election, Steve Bannon did not work for Donald Trump at all.

So even if the courts upheld Trump’s executive privilege, Bannon would not be covered by it. Unless he, and the Former Guy, were able to tie this thing up in court until the 2022 elections and the possible ascension of a new Republican majority. And if that were the case, it expands the Overton window in a far more dangerous way, making anyone a future president chooses to conspire with into a “presidential advisor”—whether they work for the president or not.

Steve Bannon must go to jail because Congress needs to act quickly to close this particular iteration of the Overton window and every other one that follows. Bringing the full weight of its power down on Bannon is an essential step towards protecting, not just its own Constitutional authority, but our democracy.

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Short takes:

  • At Persuasion, historian Sean Wilentz argues for not removing Thomas Jefferson's statue at Manhattan’s City Hall. It’s utterly predictable that Wilentz would do this. Citing historian Annette-Gordon Reed’s work on Jefferson, Wilentz decries mischaracterizations of the founder “as a rapist, a systematic abuser of black women, and a sadistic slave owner. Blend enough sensational falsehood into his biography,” he writes, “and it’s easy enough to invent a Thomas Jefferson who was a perfect monster, unfit for celebration of any kind, let alone in New York’s City Hall.” But the point is not that Jefferson was a “perfect monster,” it’s that people like Jefferson went to great lengths to rationalize the monstrosity of slavery. Slaveholding was a crime against humanity. People like Jefferson managed to survive their implication in these crimes by lying and then being honored with statues that represent them as perfectly normal and honorable men. This problem just isn’t so hard to think through, Sean. (October 22, 2021)

  • At Salon, Amanda Marcotte assesses the state of play for the conspiracy-minded and argues that the GOP is searching for a version of Trump’s Big Lie “that isn't so ridiculous. They need something they can slip past the fact-checkers at the New York Times and CNN. Preferably a way to package the same idea — that people of color and urban voters are inherently illegitimate — without sounding like a maniac like the MyPillow Guy. They need a definition of `rigged’ that doesn't sound like the ravings of 9/11 truthers or QAnon-addled morons.” And they are getting there. (October 21, 2021)

  • One aspect of infrastructure is getting on a plane in areas where the distances between major cities are daunting. Steven Hartgen of the Idaho Capitol Sun reports that Delta Air Lines, which ran three flights a day from Twin Falls to Salt Lake City, has cut back to one. As Hartgen points out (more cheerfully than I would), this is an old story. There was a short time when no airline served TWF (when Howard Hughes and his Air West went bust.) My family had the stomach-lurching experience of taking a small plane known as a “puddle jumper” over the Cascades on the final leg of our annual summer trip to see my grandparents. But the city is now more than twice as big as it was then, Boise is still 100 miles away, Salt Lake is 200 miles away, and the Magic Valley region will have to fend for itself. (October 19, 2021)