Steve Bannon believes that he can defy a congressional subpoena because Donald Trump told him so. That, at least, is what Bannon’s lawyer Robert Costello told the House select committee investigating the events of January 6th, in a letter saying that Trump had instructed Bannon and others not to testify, citing a vague claim of executive privilege. The committee, understandably, disagrees. Bannon, Trump’s 2016 campaign chairman and sometime White House strategist, was closely involved in the planning of Trump’s Save America rally, which preceded the march and assault on the Capitol. And so, on Thursday, a week after Bannon was supposed to appear for a deposition—he was a no-show—the House of Representatives passed a resolution holding him in criminal contempt, which means that his case will be referred to the Justice Department for possible prosecution. The vote was 229–202. Only nine Republicans voted in favor.
Trump, for his part, both in the Bannon case and in a lawsuit that he filed against the committee this week, is making claims about his own power and impunity that are outrageous even by his standards. Bannon, for example, is a fairly straightforward candidate for inclusion on the witness list of a serious inquiry into January 6th, given his involvement in the Save America rally. The select committee noted in its report backing up the criminal-contempt referral that on January 5th, Bannon told listeners of his radio show and podcast, “It’s not going to happen like you think it’s going to happen. O.K., it’s going to be quite extraordinarily different. All I can say is, strap in”; “Tomorrow it’s game day”; “All hell is going to break loose tomorrow”; and “It’s all converging, and now we’re on, as they say, the point of attack tomorrow.” What, exactly, was he talking about? The committee also cited reporting that, “in the days surrounding” January 6th, Bannon was at meetings in a “war room” at the Willard InterContinental Hotel, a few blocks from the White House, with Rudolph Giuliani, the former New York City mayor turned Trump legal adviser, and John Eastman, a former law professor, among others. It was Eastman who wrote a memo for the Trump team with instructions for how Vice-President Mike Pence could essentially hijack the certification of electoral votes at the joint session of Congress, and declare Trump the winner. (None of those options was remotely constitutional; Pence declined to go along.) In short, Bannon is not some random prominent Trump supporter being pursued in a fishing expedition.
A couple of facts make Bannon’s claim that he is covered by Trump’s assertion of executive privilege even more of a stretch: Bannon was not a government official on January 6th, and he hadn’t been since Trump fired him, in 2017. (A key premise of executive privilege is that there is a national interest in the President’s being able to deliberate on matters of state with his closest advisers without those conversations becoming public.) And the committee, while certainly interested in what Trump may have told Bannon that day, also wants to ask Bannon about matters that do not involve his direct communications with the President. Bannon, though, refused to even appear in person to make whatever claims of privilege he might have about particular areas. Nor is he engaging with the committee to negotiate limited testimony in a way that would not be in defiance of a subpoena—an approach that some Trump aides, such as Kashyap Patel and Mark Meadows, have taken. Indeed, Costello said that, because Trump doesn’t want him to, Bannon is “legally unable” to comply with the subpoena for either his testimony or for certain documents in his possession. What’s a subpoena compared with Trump’s wishes? What’s more, in typical Trumpist slapdash fashion, those wishes are being conveyed to the committee by Bannon’s own lawyer, making for what the contempt report called “third-hand, non-specific assertion of privilege, without any description of the documents or testimony over which privilege is claimed.” By the same logic, any of Trump’s associates could defy any subpoena in the name of his generalized demand for silence.
There could, of course, be elements of the executive branch’s response to the assault on the Capitol that might arguably be privileged, such as classified security procedures. But Bannon’s testimony would have to do with the planning of the events that led to the assault. If that’s an activity of the executive branch, it’s certainly not a legitimate one. Executive privilege doesn’t extend to hiding evidence of a coup.
But, in a sense, all of that is irrelevant, because Trump—as he may not have noticed—is not the President any more. Joe Biden is, and his White House’s deputy counsel, Jonathan Su, has, the A.P. and Washington Post reported, issued a letter to Costello saying that the Administration is “not aware of any basis for your client’s refusal to appear for a deposition,” and had “determined that an assertion of executive privilege is not in the public interest, and therefore is not justified.” Su’s letter referred to an even broader waiver of executive privilege that the Biden Administration had issued on a hundred and twenty-five documents held by the archivist of the United States that the select committee had requested. Under the Presidential Records Act, which applies to such matters, when a committee asks for documents, the archivist informs the current President and, if the material applies to an earlier Administration, the relevant former President, too. Both have a chance to register a claim of executive privilege—both get to be heard—but the current President has the power to overrule the former one if they disagree.
And they did. On October 8th, Dana Remus, the White House counsel, sent two letters to the archivist. The first constituted Biden’s own waiver, in which she wrote that Biden had determined that “an assertion of executive privilege is not in the best interests of the United States,” because the congressional request was a legitimate one and “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.” In Remus’s second letter, sent after Trump responded to the archivist with a claim of privilege, she reiterated that finding, and wrote, “Accordingly, President Biden does not uphold the former President’s assertion of privilege.”
This waiver is at the heart of the lawsuit that Trump filed, this week, against the committee and its chairman, Representative Bennie Thompson. The suit seeks to stop the archivist’s release of the documents and the committee’s work more generally. It is, as one would expect, full of complaints about what Trump sees as the unfairness of it all—that the committee has “decided to harass” him and his aides and that “the Biden Administration’s waiver of executive privilege is a myopic, political maneuver designed to maintain the support of its political rivals.” The subject of executive privilege is an unsettled one, but Trump’s claims are related far more closely to his own position—and his attempts to delay the committee’s work—than to any coherent view of what a President can do. The most extraordinary aspect of the suit may be Trump’s claim that if the Presidential Records Act can be “read so broadly as to allow an incumbent President unfettered discretion to waive the previous President’s executive privilege, mere months following an administration change, then it would render the act unconstitutional.”
The basis of this supposed unconstitutionality is not made clear, other than, again, that Trump says so. There are references elsewhere to the separation of powers, but one gets the sense that what bothers Trump most—what seems to him most outrageous—is his own separation from the White House. The issue here isn’t the power of the Presidency; it is the power of Trump.
Read More About the Attack on the Capitol
- The risks of the second Trump impeachment trial.
- A reporter captures the siege on video.
- John Sullivan claims that he attended the insurrection as a journalist. Others believe he urged the mob on.
- Identifying the Bullhorn Lady, a Pennsylvania mother of eight who became a fugitive from the F.B.I.
- The crisis of the Republican Party has only begun.
- Sign up for our daily newsletter for insight and analysis from our reporters and columnists, and subscribe to the magazine.