Justice Department will need waiver from Biden to prosecute Trump ally Steve Bannon, expert says

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Steve Bannon’s decision to defy a subpoena from a congressional committee investigating the Jan. 6 Capitol riot could result in serious consequences for the former Trump White House strategist, but there are a few big question marks about whether he will actually face criminal prosecution.

The bipartisan Jan. 6 select committee will vote Tuesday on whether to refer Bannon to the Justice Department for criminal prosecution for contempt of Congress. The panel is expected to approve the referral, and after that, the full House of Representatives will have to vote on the matter as well. House Speaker Nancy Pelosi has not announced when such a vote would take place.

Contempt of Congress is a federal misdemeanor charge punishable by up to one year in prison and a maximum fine of $100,000.

Former White House Chief Strategist Steve Bannon exits the Manhattan Federal Court on August 20, 2020 in the Manhattan borough of New York City. (Stephanie Keith/Getty Images)
Former White House chief strategist Steve Bannon exits Manhattan federal court on Aug. 20, 2020. (Stephanie Keith/Getty Images)

Bannon worked as Donald Trump’s chief political adviser during the 2016 campaign and the first several months of his administration. Although he was pushed out of the White House, he allegedly played a crucial role in getting Trump to return to Washington from Florida on Jan. 6 to make a concerted effort to stop the certification of the 2020 election in Congress.

There has been speculation that Bannon might file lawsuits to evade the congressional subpoena, and on Monday Trump himself did file a suit, seeking to block the committee from obtaining records and depositions. But Jonathan David Shaub, a former attorney for the Justice Department’s Office of Legal Counsel, told Yahoo News that the DOJ may be hesitant to prosecute Bannon because of the way it has handled similar cases in the past. Bannon has claimed he cannot cooperate because Trump has claimed executive privilege over his testimony, even though Bannon had not been a government employee for years on Jan. 6. Executive privilege allows presidents to keep certain communications secret from Congress.

Shaub said that even though Bannon’s protections under executive privilege would likely be dismissed in the courts, the Justice Department faces an obstacle in prosecuting him, because in 2007, the DOJ argued, in Shaub’s words, that “executive privilege can protect advice that individuals outside the executive branch give the president.” And precedents carry a lot of weight when there are questions about how executive privilege can be applied.

In 2007, House Democrats were seeking documents and testimony related to then-President George W. Bush’s firing of several U.S. attorneys. Acting Attorney General Paul Clement advised Bush that Congress did not have a right to compel documents and testimony from “individuals outside the Executive Branch.”

“I believe that communications between White House officials and individuals outside the Executive Branch … fall within the scope of executive privilege,” Clement wrote. And Clement’s opinion, while not necessarily binding, is likely to influence the current Justice Department’s thinking.

Paul D. Clement, Partner, Kirkland & Ellis, speaks during a Supreme Court Bar Memorial in honor of the late Supreme Court Justice Antonin Scalia in the Great Hall of the Supreme Court on November 4, 2016 in Washington, DC. (Carolyn Kaster/Getty Images)
Former acting Attorney General Paul Clement in 2016. (Carolyn Kaster/Getty Images)

In 2019, then-President Donald Trump used the Clement memo to prevent former political adviser Corey Lewandowski and former Kansas Secretary of State Kris Kobach from discussing their communications with him on two different matters. “A President must frequently consult with individuals outside of the Executive Branch, and it is well settled that those communications are also subject to protection,” then-White House counsel Pat Cippolone wrote.

But a 2019 report by the Congressional Research Service (CRS), which advises lawmakers on the scope of their powers, disputed that this expansive reading of executive privilege was “well settled” precedent.

“White House assertions of executive privilege for presidential communications have historically been confined to individuals who were executive branch employees when those communications occurred,” wrote CRS analyst Ben Wilhelm.

“It appears that recent testimony by [Lewandowski and Kobach] are likely the first times the executive branch has actually made such an assertion to Congress.”

Cippolone also noted in his letter that “the protections for such Presidential communications include all communications relating to the President’s performance of his official duties and responsibilities.”

And this is where Bannon’s case is weakest, Shaub noted, rather than the fact that he was not in government.

“The real reason Bannon’s executive privilege arguments are so weak is that his testimony about the events leading up to Jan. 6 almost certainly has no relation to Trump’s ‘official’ duties as president and relate solely to actions Trump was taking in his personal and political capacity, which is legally distinct,” Shaub told Yahoo News.

“By definition,” Shaub said, “executive privilege does not protect conversations about undermining the Constitution.”

WASHINGTON, DC - JANUARY 6: Trump supporters clash with police and security forces as people try to storm the US Capitol on January 6, 2021 in Washington, DC. - Demonstrators breeched security and entered the Capitol as Congress debated the 2020 presidential election Electoral Vote Certification. (photo by Brent Stirton/Getty Images)
WASHINGTON, DC - JANUARY 6: Trump supporters clash with police and security forces as people try to storm the US Capitol on January 6, 2021 in Washington, DC. - Demonstrators breeched security and entered the Capitol as Congress debated the 2020 presidential election Electoral Vote Certification. (photo by Brent Stirton/Getty Images)

Nonetheless, before the Bannon subpoena can be adjudicated by the courts, the Justice Department has to decide whether to go against the de facto policy established by the 2007 Clement memo. And Shaub said that for the Justice Department to do so, it would almost certainly need an explicit waiving of executive privilege regarding Bannon from President Biden.

“In my view, [the DOJ] will likely not prosecute without an explicit waiver of any potential privilege claim by Biden,” Shaub said.

The Justice Department has not responded as to whether the 2007 Clement memo represents its current policy on prosecuting individuals outside the executive branch who are being directed by a former president not to speak to Congress.

Biden has already waived executive privilege for documents related to Jan. 6 that the select committee requested from the National Archives, and on Monday, the Associated Press obtained a letter from the White House to Bannon's attorney that said executive privilege does not apply to him.

"President Biden’s determination that an assertion of privilege is not justified with respect to these subjects applies to your client’s deposition testimony and to any documents your client may possess concerning either subject,” deputy White House Counsel Jonathan Su wrote.

That is probably the green light from Biden that the Justice Department needs, giving it the go ahead to prosecute. And now that Trump has sought to delay a trial with a lawsuit, “a court may dismiss Trump or Bannon’s arguments based on executive privilege as frivolous and order Bannon to comply relatively quickly, meaning a matter of a few months, including the appeals, opposed to years,” Shaub said.

According to Politico, in addition to Bannon, Trump has directed former White House chief of staff Mark Meadows, former Pentagon official Kash Patel and former social media director Dan Scavino to ignore the select committee’s subpoenas, citing executive privilege. But not everyone is taking Bannon’s approach.

U.S. President Joe Biden speaks to reporters as he arrives on the South Lawn of the White House October 15, 2021 in Washington, DC. (Drew Angerer/Getty Images)
President Biden speaks to reporters on Friday. (Drew Angerer/Getty Images)

Meadows and Patel are both “engaging” with the Jan. 6 select committee, according to Rep. Bennie Thompson, D-Miss., the chair of the panel.

Scavino, on the other hand, was not served his subpoena for more than two weeks after it was first issued, because process servers had trouble locating him. Scavino, a close associate of Trump who does much of his social media, denied he was hiding and trying to avoid being served.

Though Bannon is the first witness in the Jan. 6 committee’s investigation to face a potential contempt charge, Thompson has warned that others who fail to cooperate could be next.

“The Select Committee will not tolerate defiance of our subpoenas,” Thompson said in a statement last week, vowing that the House panel will use “every tool at its disposal to get the information it seeks, and witnesses who try to stonewall the Select Committee will not succeed.”

Bannon, meanwhile, “appears to have calculated that the propaganda value of total defiance is worth the possibility of criminal proceedings and the legal fees those will entail,” Shaub said.

“Bannon seemed eager to escalate the dispute with the committee, perhaps as a calculated strategy to claim the mantle as the true loyal warrior continuing to fight” for Trump.


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