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(CNN) -
Trump's ally Steve Bannon's chicken game with the House committee investigating the Jan. 6 Capitol riots is about to enter a critical new phase this Thursday. as he faces his last chance to change course and comply with the panel's subpoena before lawmakers are likely to move to pursue criminal charges.
Bannon's attorney wrote a letter to the panel on Wednesday saying his client will not provide testimony or documents until the commission reaches an agreement with former President Donald Trump on executive privilege or a court weighs the matter.
"That is a matter between the committee and President Trump's attorney and Mr. Bannon is not required to respond at this time," attorney Robert Costello wrote.
The letter redoubled earlier instances in which the former White House adviser made clear that he has no intention of appearing for a statement Thursday as ordered by the commission and essentially challenged lawmakers to sue or find him in criminal contempt early in the month. this month in response to the subpoena.
If Bannon does not appear, the commission is expected to immediately begin seeking a referral for criminal contempt after the subpoena deadline passes - essentially making an example of Bannon's default as the House seeks more witnesses, sources familiar with the law said. planning to CNN.
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While it could be some time before the House sends such a referral to the Justice Department, the commission could take initial action within hours of the panel's deadline - which is this Thursday - if Bannon refuses to cooperate, they added. sources, underscoring the growing sense of urgency surrounding the investigation itself.
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CNN reported Wednesday that the commission is unified in its plan to pursue criminal charges against those who refuse to comply, and lawmakers have targeted Bannon specifically while discussing the option publicly.
"The reason some of these witnesses, people like Steve Bannon, who have gone public with their contempt for Congress, feel like they can get away with it is that for four years they did," Rep. Adam told MSNBC on Wednesday. Schiff, member of the commission.
Schiff, who also chairs the intelligence commission, said Bannon had refused to cooperate with the House investigation into Russia during the Trump administration because "he would never be held in contempt."
"He would never be prosecuted by the Trump Justice Department. But those days are over. And I see it not only as essential to our investigation, but I also see this, the application of the rule of law, as an early test of whether our democracy is recovering, "added the California Democrat.
CNN legal analyst Norm Eisen was quick to rebut Costello's letter: "It's just plain wrong. The letter cites a case that says' the President 'can make executive privilege determinations. But Trump is no longer' the President. 'In America, we only have one of those at a time, it's Joe Biden, and he hasn't asserted the privilege here, "he said.
Three other Trump allies are also facing subpoena deadlines this week.
Two of them, Trump's former chief of staff, Mark Meadows, and former administration official Kash Patel, have been "engaged" with the commission, according to the panel, although it is unclear whether that contact amounts to some form of cooperation. .
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The commission has until recently been able to serve a subpoena on Trump's former deputy chief of staff, Dan Scavino, a source familiar with the matter told CNN, and his deadline to appear for a statement was likely delayed.
As for whether Meadows and Patel will appear before the panel for their depositions later this week, Representative Stephanie Murphy, D-Florida, said: "My expectation is that they will do the patriotic thing and appear before the commission, and if they have nothing to hide, there is no reason not to show up. "
'Waiting for Steve Bannon's statement'
Bannon has so far been uncooperative, and lawmakers seized the opportunity before Thursday's deadline to reiterate that he is obligated to do so.
"Looking forward to the deposition of Steve Bannon tomorrow and receiving all the testimony and evidence that we cited," select commission member Rep. Jamie Raskin, D-Maryland, said in a tweet Wednesday.
"This is a legal order as well as a civic duty to share information about the most sweeping violent attack on Congress since the War of 1812."
In a letter to the commission earlier this month, Bannon's attorney argued that "executive privilege belongs to President Trump" and "we must accept his direction and honor his invocation of executive privilege."
The letter from Bannon's legal team goes on to say that he may be up to the courts to decide whether he is ultimately forced to cooperate, essentially challenging the House to sue or hold him in criminal contempt.
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"As such, until these issues are resolved, we are unable to respond to your request for documents and testimony," wrote attorney Robert Costello.
The claim that Bannon could be covered by the former president's privilege is unusual, because Bannon was not working for the federal government during the period surrounding the January 6 insurrection.
Privilege claims typically apply to close officials surrounding the president and deliberations between government employees, and Bannon was fired from his role as a White House adviser in 2017.
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Many legal experts agree with the commission that Bannon, as a private citizen, would not have the ability to block a subpoena alleging executive privilege.
Historical cases of criminal contempt
As serious as a criminal contempt referral sounds, the House's choice to use the Justice Department may be more of a warning shot than a solution.
Holding Bannon in criminal contempt through trial could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
"They're in a box, in a way," Stanley Brand, a former House of Representatives general counsel, said Wednesday.
"Whichever path they take is a legal dispute that will potentially take time."
Congress almost never forces a recalcitrant witness to testify through court process, according to several Washington attorneys who have long been familiar with congressional procedures.
An official from the Reagan administration's Environmental Protection Agency was the latest person charged with contempt of Congress.
It took the Washington Department of Justice eight days from receiving the House of Representatives contempt referral against Rita Lavelle in 1983 until a grand jury indicted her.
Lavelle fought the charges all the way to trial, and a jury found her not guilty.
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At least one other criminal proceeding for contempt prior to Lavelle, during the McCarthy-era anti-communist investigations in the 1950s, was overturned by the Supreme Court on appeal.
In more recent administrations, the Justice Department has refused to prosecute contempt cases, although in those situations, Congress has referred members of the incumbent's administration for contempt.
"I'm watching people on TV chatter about this. They're going to put [Bannon] in criminal contempt. Okay. Good. That just starts the case," Brand, who was the House's attorney general for the past, told CNN. Lavelle's contempt process.
"There is a trial. It is not automatic that they will be sentenced."
The criminal contempt approach is also structured to be more of a punishment than an attempt to force a witness to speak.
"It's not like civil contempt, where you have the keys to your cell and go free" if a witness agrees to testify, Brand said.
Instead, the House essentially loses control of the case, as the Justice Department is tasked with prosecuting it.
"They don't have time," Brand added.
"They have to finish this before next year, before there are elections."
CNN's Christie Johnson contributed to this report.
Attack on the Capitol by Steve Bannon