(Bloomberg) -- The Democratic-controlled House is poised to cite former Trump adviser Steve Bannon with criminal contempt of Congress, an action that will throw a politically fraught decision into the lap of Attorney General Merrick Garland.

The House vote Thursday afternoon is likely to figure prominently when Garland testifies before the House Judiciary Committee earlier in the day. If passed as expected, the contempt citation -- stemming from an investigation into the Jan. 6 riot at the U.S. Capitol by supporters of former President Donald Trump -- would be referred to the U.S. attorney for the District of Columbia, who would decide along with Garland on whether to prosecute.

Bannon has, at Trump’s direction, refused to testify or provide documents to the select committee conducting the probe. His lawyer, Robert Costello, has argued that Bannon is not actively defying the Jan. 6 panel subpoena -- but rather is seeking a clarification of the law because Trump’s lawyer has suggested that privilege is at issue.

But the select committee has rejected that argument. The resolution recommending the House hold Bannon in contempt says Trump has yet to make a formal assertion of privilege and that Bannon wouldn’t qualify in any event because he was not a government employee or a Trump adviser during the period under investigation. 

“Witnesses cannot simply ignore congressional subpoenas when they prefer not to attend,” Representative Liz Cheney, a Wyoming Republican and vice chair of the Jan. 6 panel, said Wednesday during a meeting to set the rules for the House floor vote on holding Bannon in contempt. “Criminal contempt is the appropriate response in these circumstances.”

Riot Probe Panel Recommends Holding Bannon in Criminal Contempt

A criminal referral of Bannon’s case represents a major test for Garland, who has pledged to restore independence and credibility to the Justice Department. Garland is testifying for the first time before the Judiciary Committee on Thursday morning in what was scheduled to be a routine oversight hearing. But the Bannon case is likely to take a prominent place.

Trump’s Republican allies on the Judiciary committee likely will try to turn the tables by accusing Democrats of politicizing the Justice Department. Republicans also are expected to criticize Garland for recently ordering the FBI to address threats and violence against local school officials from parents over issues like masking and teaching about race.

The tensions over how to handle defiance from Bannon and potentially other Jan. 6 witnesses was on full display last week when President Joe Biden said any witness who refuses to cooperate with the congressional investigation should be held accountable. 

Justice Department spokesman Anthony Coley issued a curt statement in response, saying “the Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law.”

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Trump has instructed his allies not to participate in the probe and threatened to seek a court order allowing him to exert executive privilege to block investigators from accessing documents or testimony from advisers related to the incident, in which his supporters violently swarmed the Capitol and sought to disrupt Congress from counting electoral college votes.

Tensions boiled over during Wednesday’s rules meeting. 

Ohio Republican Jim Jordan, the top Republican on the Judiciary Committee, said the Jan. 6 panel is directly attacking liberties and citizens’ fundamental First Amendment rights. He called subpoenas issued by the Jan. 6 committee, including to those who were issued permits to hold rallies, as targeting those who were exercising those rights.

“This is scary where they want to go, what they are doing to fundamental Constitutional rights,” he said.

While many previous congressional contempt citations have gone nowhere because presidential administrations have been unwilling to prosecute current or former officials, a report released Tuesday by the Congressional Research Service suggests this case could be different.

“Bannon appears to be asserting an executive privilege defense to the subpoena that the Biden administration reportedly does not support,” the CRS report says. “Bannon could face a more credible threat of criminal prosecution than was the case in other recent criminal contempt of Congress referrals.”

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