It wasn’t the pre-dawn full-bore raid that Paul Manafort experienced last August, but Steve Bannon opened the door at his Washington home last week to find a pair of FBI agents with a subpoena in hand. What they delivered wasn’t an invite to drop in for a chat.
The subpoena compels Bannon to testify before a grand jury, skipping the voluntary interview with Mueller's team that many in Trump's orbit have elected to take. But Mueller may still leave open the option for an interview in lieu of grand jury testimony. Bannon is likely to accept such an option if it is made available, according to a source close to Bannon.
The meeting with Robert Mueller hasn’t happened yet, but the special counsel apparently wanted to drive a stake in the ground and make it clear that Bannon, in the midst of his apology tour for talking to author Michael Wolff, didn’t fold to White House pressure to zip his already well-exercised lips.
And it looks like Mueller had a very good reason to be concerned. Bannon “testified” on Tuesday for the House Intelligence Committee. Like most of the interviews that Congress has conducted where there was a potential to embarrass Trump, this one was held behind closed doors. But just because he was off camera didn’t mean Steve Bannon was willing to talk. While many Trump associates have already stretched the idea of executive privilege, Bannon tortured it into a blanket excuse not to talk to anyone about anything.
Representative Adam Schiff of California, the top Democrat on the Intelligence Committee, said the White House had instructed Bannon to not answer many questions on the grounds that it wanted him to preserve the president’s option to assert executive privilege later on.
“The scope of this assertion of privilege -- if that’s what it is -- is breathtaking,” Schiff said. “It goes well beyond anything we have seen in this investigation.”
Considering how much the idea has been abused to this point, that’s an amazing statement.
Executive privilege isn’t mentioned in the Constitution, but after Richard Nixon maintained his power to withhold some information from Congress, the Supreme Court upheld the idea of executive privilege as part of the separation of powers. During the Iran-Contra investigation, the Reagan administration issued a directive stating that when Congress asked for information that might impact the president, that witnesses should request that investigators hold questions “in abeyance” until a check could be made with Reagan’s team to see if they wanted to make a claim of privilege.
But what’s happened under Trump goes miles beyond any other understanding of privilege. Officials from the Trump team have repeatedly refused to answer on the basis that what they said might be subject to a claim of privilege. They’ve claimed that anything said to Trump can’t be repeated. That anything said to a member of Trump’s legal team can’t be repeated. That anything said in Trump’s presence can’t be repeated. They haven’t put in a request to check with the White House attorney. They haven’t made a formal assertion of executive privilege. They’ve just … refused to talk.
Considering how freely other members of Trump’s inner circle have flung this idea around, Bannon’s blanket assertion of privilege must have been really special.
“This was effectively a gag order by the White House preventing this witness from answering almost any question concerning his time in transition, in the administration, and many questions even after he left the administration,” Schiff said. “This obviously can’t stand. We expect to have Mr. Bannon back in, we hope very soon, with a different position by the White House.”
Previously, Republicans on the House committee have been willing to wave off testimony that was riddled with privilege-holes. But Bannon’s unhappy clam act was apparently so extreme that even Republicans are looking at bringing him back to answer questions again—maybe as soon as later this week.
How extensively is the Trump team now using privilege? This is Trey Gowdy talking on Fox News.
The subpoena was issued “because it it the most tortured analysis of executive privilege I have ever heard of,” Gowdy, a former federal prosecutor, said on Fox News. “Executive privilege now covers things before you become the chief executive — which is just mind-numbing and there is no legal support for it.”
Bannon’s refusal to answer was so bad from the outset of the hearing, that the House committee drafted a subpoena on spot, changing Bannon’s attendance from voluntary to mandatory.
When Bannon refused to answer questions, Schiff said, the committee decided on a bipartisan basis to issue the subpoena to make his attendance at the hearing “compulsory,” and Bannon was served.
But that did little to make him talk.
Bannon’s lawyer conferred again with the White House and “was instructed by the White House to refuse again to answer any questions even though he was under a compulsory process concerning the period of time during the transition and administration,” Schiff said.
It’s as if the Trump White House has discovered a Fifth and a half Amendment—one that gives people the right not to say anything that would harm Donald Trump.
It it certainly justifies Mueller’s effort to bring Bannon before the grand jury … where there is no “executive privilege.”