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January 6 investigators are talking about criminal contempt charges for ignored subpoenas. Here’s what that means.

<i>Tasos Katopodis/Getty Images</i><br/>Members of the House select committee investigating the January 6 attack on the US Capitol have floated the idea of seeking a referral for criminal contempt as the next step for anyone who defies a subpoena from the panel.
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Tasos Katopodis/Getty Images
Members of the House select committee investigating the January 6 attack on the US Capitol have floated the idea of seeking a referral for criminal contempt as the next step for anyone who defies a subpoena from the panel.

By Paul LeBlanc, CNN

Members of the House select committee investigating the January 6 attack on the US Capitol have made clear they’re willing to move forward with criminal contempt referrals against any witness that refuses to comply with its subpoenas.

But what does that mean?

Criminal contempt is one of the three options the congressional panel can pursue to enforce its subpoenas, along with civil and inherent contempt.

Steve Bannon could be the first to test the panel’s willingness to purse such a referral. The committee is scheduled to meet Tuesday and vote on whether the Trump ally should be referred to the Justice Department for criminal contempt charges after refusing to comply with a subpoena deadline last week.

The panel had sent him a letter on Friday rejecting his argument for failing to comply while dismissing his claim of executive privilege, particularly as it relates to his communications with individuals other than former President Donald Trump, according to a copy obtained by CNN.

Here’s what criminal contempt is and how it compares with civil and inherent contempt:

Criminal contempt

To pursue criminal contempt charges, Congress would vote on criminal contempt, then make a referral to the executive branch — headed by the president — to try to get the person criminally prosecuted.

A jail sentence of a month or more is possible if a witness won’t comply, under the law.

It’s unclear how quickly this route would move, and how the Biden Justice Department would respond to a contempt referral from the Democrats in the House. The process would leave it up to Attorney General Merrick Garland to decide on involving the Justice Department in pursuing charges, putting the department in the middle of what many Republicans view as a partisan effort.

But Rep. Liz Cheney of Wyoming, one of two Republicans on the panel, told CNN that “the committee is completely in solidarity” on the decision to move quickly on pursuing criminal contempt charges for those who evade subpoena deadlines.

“People will have the opportunity to cooperate. They will have the opportunity to come in and work with us as they should,” Cheney said. “If they fail to do so, then we’ll enforce our subpoenas.”

Civil contempt

Unlike with criminal contempt, civil contempt would see Congress ask the judicial branch to enforce a congressional subpoena.

In other words, Congress would seek a federal court’s civil judgment saying the person is legally obligated to comply with the subpoena.

During Donald Trump’s presidency, the House tried this approach many times, but the court process moved so slowly it took months or even years for standoffs to resolve. Some, like a House subpoena for Trump’s IRS returns, still linger before a trial judge.

Inherent contempt

The third option the panel could use to enforce its subpoenas would be inherent contempt, which involves telling the House or Senate sergeant-at-arms to detain or imprison the person in contempt until he or she honors congressional demands.

This is an extremely rare process and hasn’t happened in modern times.

This story has been updated with additional developments.

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CNN’s Zachary Cohen, Ryan Nobles, Annie Grayer, Whitney Wild and Kristen Holmes contributed to this report.

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