Former campaign CEO, former strategic advisor, former executive chair of Breitbart News, and former director and producer of a movie starring “duck commander” Phil Robertson, Steven K. Bannon made an appearance before the House Intelligence Committee earlier this week that was notable for just one thing—a galling attempt to extend executive privilege.
Other than launching a tirade about how the investigation itself was a joke, Bannon was uncharacteristically silent for most of the day, ducking one question after another, and scowling at the room as his lawyer dashed out to talk to … someone. It was a performance so frustrating that even Republicans soon tired of this shtick and demanded answers. Bannon had none.
Bannon, who was appearing as a voluntary witness, was threatened with a subpoena. He refused to talk. The House then went forward on the spot to subpoena Bannon and bring him under the House rules for summoned witnesses. Those rules don’t recognize non-disclosure agreements or privacy agreements between businesses and clients. The House rules do not even recognize attorney-client privilege. Bannon continued to refuse to talk. His attorney continued to consult with … someone.
During the hearing, the assumption was that Bannon was getting marching orders straight from the White House. That was certainly the impression for the highly frustrated congressmen in the room.
Steve Bannon, the former chief strategist for President Donald Trump, was asked formally by a White House lawyer to cite executive privilege in declining to discuss conversations with key administration officials, triggering a battle with House investigators that is stretching into its second day.
But then, Chief of Staff John Kelly—the man who had helped Steve find his way to the White House exit—went on Fox to claim that the White House wasn’t behind Bannon’s lip clamps.
“Steve has had very, very little contact with the White House since he left,” Kelly said, with the “exception of a few phone calls.”
The Kelly claim actually lead to speculation that maybe Bannon was staying quiet on orders from Robert Mueller, who had recently issued Bannon a nice, suitable-for-framing, subpoena via FBI agents at his door.
But two days later, it was clear who really told Bannon to shut it—it was Donald Trump. And Republicans may have finally reached the point where Trump has burned his executive privilege bridge.
President Donald Trump personally made the decision to curtail the testimony of former chief White House political strategist Steve Bannon before the House Intelligence Committee, according to two people with firsthand knowledge of the matter.
Bannon’s lawyer was probably passing along questions to White House attorney Don McGahn, who seems to be doing double duty as both a person of interest in the Trump–Russia investigation and the coordinator of Trump’s attempts to cripple congressional hearings.
But well before congressional staffers inserted fresh Glade plug-ins in anticipation of Bannon’s arrival, the word on how this would go had already been delivered. Trump and his legal team had already decided that Bannon was not to relay anything about the campaign, anything about the transition team, anything about the White House, or anything about what came after the White House, all on the most expansive, most dubious definition of executive privilege ever put forward.
And while they were telling Bannon he couldn’t talk, Trump’s team worked to drive that stick deep into Congress’s collective eye.
“We encourage the committees to work with us to find the appropriate accommodation in order to ensure Congress obtains all the information that they’re looking for,” White House Press Secretary Sarah Huckabee Sanders said.
Which isn’t even a nice way of saying “suck it.”
How justified is this new Trump theory of “anything ever said to, around, or about me before, during, or after I got a giant Diet Coke button is top secret whether I said it was or not”? Let’s check in with a former federal prosecutor.
Bannon can’t assert executive privilege to begin with, because — as mentioned — it’s not his to assert. The president could assert executive privilege and formally seek to prevent Bannon and other aides from disclosing their communications with him to Congress, to Special Counsel Robert S. Mueller III, or to a grand jury. But the president has not asserted it — not for Sessions, not for Jared Kushner, not for Don, Jr., and not for Steve Bannon.
Or maybe he has. It’s just that Donald Trump’s assertion of executive privilege is under the protection of executive privilege. From Donald Trump.
Even an extremely limited claim of privilege has issues. The definition of what it allows isn’t perfectly clear. It’s just clearly much, much less than the Trump White House has been claiming.
Every American should read the Supreme Court’s decision in United States vs. Nixon. It’s easy to find on the internet, where you can read it in full or even listen to the oral argument.
The decision has aged well. It’s clear and succinct and states a rule of law that every democracy should put up on a bronze plaque: “The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court.”
And that’s why Bannon is claiming “privilege” for which he has a tedious explanation omitting the word “executive.” The same is true of other Trump aides who have appeared before committee. There’s been a concerted effort, from day one, to claim “privilege,” then deliver some convoluted discussion about the importance of giving the present good advice, without ever invoking the magic phrase “executive privilege.”
The reason for that is dead clear: Trump can’t claim executive privilege in an investigation that is about locating evidence against Trump. That was carved deep into the original Supreme Court rulings on the topic.
Bannon, like every other Trump associate, is claiming privilege, but refusing to state the full nature of that privilege.
- Bannon should be made to sit down again before the committee to answer questions. If he claims privilege, let him state the terms of that privilege.
- If it’s anything less than “executive privilege on the explicit orders of Donald Trump,” Bannon should be reminded that the House rules recognize no other privilege.
- If it is executive privilege on Trump’s explicit demand, Bannon should be reminded that the Supreme Court ruling on executive privilege explicitly denies any right to privilege in a case investigating potential misdeeds by the executive.
At that point, he should be forced to answer or held in contempt. There really isn’t a third choice.
But even before Bannon appears again—if he does—one thing is blindingly clear. The Trump White House is not cooperating with the investigation. Not in any way. Not on any stage. And every assertion that it is cooperating should be met with challenge.