I’m dying to hear a lawyer argue that conversations in early 2021 between the president and a guy who hadn’t worked in the executive branch since 2017 are somehow covered by executive privilege.
The news that Bannon will resist being subpoenaed is good for both sides. It’ll earn him some extra brownie points with MAGA for fighting the dreaded House committee on the insurrection. And for the committee it’s an opportunity to make an early example of a reluctant witness to show future witnesses that they’re not messing around. Bannon’s the easiest target for them too since his privilege claim is so weak. The other three who were subpoenaed, Mark Meadows, Kash Patel, and Dan Scavino, all worked in the executive branch on January 6 and will have stronger claims.
Bannon knows he’s going to lose this fight, I take it. He’s just putting the committee through its paces by making them enforce a subpoena in court.
In a letter to the panel, Robert Costello, Mr. Bannon’s lawyer, said a lawyer for Mr. Trump had asked some of the aides and advisers facing subpoenas to invoke immunity and refrain from turning over documents that might be protected under executive privilege.
“It is therefore clear to us that since the executive privileges belong to President Trump, and he has, through his counsel, announced his intention to assert those executive privileges enumerated above, we must accept his direction and honor his invocation of executive privilege,” Mr. Costello wrote. “As such, until these issues are resolved, we are unable to respond to your request for documents and testimony.”
Actually, executive privilege typically belongs to the sitting president, President Biden. And Jen Psaki announced today on his behalf that he won’t be invoking the privilege to shield the first round of documents about January 6 sought from the National Archives by the committee:
.@PressSec on release of January 6th documents: “As a part of this process, the president has determined that an assertion of executive privilege is not warranted for the first set of documents from the Trump White House that have been provided to us by the National Archives.” pic.twitter.com/jRgVfjJjBO
— CSPAN (@cspan) October 8, 2021
Bennie Thompson and Liz Cheney, the chair and vice chair of the committee, issued a statement this afternoon warning Bannon that the DOJ could be on his ass soon. They made a little news too by noting who *isn’t* resisting a subpoena (so far):
— Byron York (@ByronYork) October 8, 2021
Meadows and Patel are “engaging” with the committee? Huh. I wouldn’t have guessed that since they’re hardcore Trump loyalists. Maybe Trump’s decision to try to invoke executive privilege as an ex-president will convince them to end their cooperation.
If not, and if in fact the committee asks the DOJ to pursue Bannon for criminal contempt, that’ll require a vote of the full House. It’ll pass, of course, since Democrats have the majority. I wonder if a single Republican besides Cheney and Kinzinger will vote in favor of enforcing an investigative subpoena by their own chamber against a guy whose claim of privilege is laughable.
Trump sent a letter today asserting executive privilege over 50 or so documents sought by the committee. Biden’s White House Counsel, Diane Remus, anticipated that and made the case for disclosure in her letter to the Archives urging that the documents be released:
“These are unique and extraordinary circumstances,” Remus added. “Congress is examining an assault on our Constitution and democratic institutions provoked and fanned by those sworn to protect them, and the conduct under investigation extends far beyond typical deliberations concerning the proper discharge of the President’s constitutional responsibilities. The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
The committee’s request asked for “everything from Twitter messages, phone and visitor logs, and any videos and photos of events he participated in” on January 6. I assume Trump will sue to try to enjoin the Archives from complying, at which point a judge will decide whether he can block delivery by asserting privilege as an ex-president even though the sitting president has no objection to it. Will Trump win that suit? Jonathan Shaub considers:
Procedurally, Trump would likely sue the archivist, David S. Ferriero, and seek a court order enjoining him from disclosing any records to the committee. Nixon II does appear to recognize a superior right in the incumbent president to assert privilege, but Trump might argue that the current process gives insufficient weight to the views of the former president or that the Biden administration has abdicated altogether its constitutional responsibility to protect privilege. Trump’s arguments would likely not succeed. But such a suit could potentially tie the archivist’s hands and prevent the disclosure of information to the committee for a substantial period of time. The chairman of the committee, Rep. Bennie Thompson, has indicated he would like to wrap up the investigation by spring 2022, and it is extremely unlikely any suit filed by Trump would be resolved by then. Litigation would likely continue up to and beyond the 2022 election. If Republicans won back control of the House, the committee would almost certainly be disbanded. As a result, litigation by Trump could very easily prevent the committee from receiving any presidential records from the National Archives.
Shaub flags a 2001 OLC opinion that argued that although “[executive] privilege belongs to the Presidency as an institution and not to any individual President, the person who served as President at the time the documents in question were created is often particularly well situated to determine whether the documents are subject to a claim of executive privilege and, if so, to recommend that the privilege be asserted and the documents withheld from disclosure.” Is there a judge out there who might decide that means an ex-president can assert privilege even when the sitting president doesn’t want to?
Probably not. Trump will lose — but he might be able to slow down the committee considerably with legal shenanigans. The slower it moves, the more fidgety Dems will get about it dragging on into next fall, when they’re going to want to focus voters on their agenda instead ahead of the midterms. I think Bannon’s part of Trump’s strategy. They’re just playing for time, hoping that the more legally onerous this process is, the more Democrats will lose interest in it.
Here’s Bannon BSing his fans recently about “decertification.”
Steve Bannon backing the idea of a Trump reinstatement, says that the “return of Trump” will be in “2022 or maybe before.” pic.twitter.com/sxneKCHp8i
— Zachary Petrizzo (@ZTPetrizzo) October 8, 2021
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