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Steve Bannon’s legal team has outdone itself with a completely batshit filing in his contempt of congress case. Most of the surreply to the government’s last brief is dedicated to performative indignation over the suggestion that executive privilege is not a lifetime benefit covering not just the holder’s executive service, but everything he does for all eternity.
“On page two, the Government makes an irrelevant point that: ‘the Defendant was a private citizen; although he had been a White House advisor for seven months at the beginning of former President Donald J. Trump’s term,'” they snark, chiding prosecutors for daring to point out that Bannon was not a member of the executive branch at the time of the events in question, and the January 6 Select Committee is not asking him about anything pertaining to his government service.
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But the filing also contains a claim that Bannon’s conversations with his attorney in the presence of former national security advisor and current MAGA grifter Mike Flynn “would be protected by attorney-client and work product privileges, even though it included General Flynn who was at that time working for Sidney Powell, Esq., one of the lawyers working for President Trump at that time.” Which is both bizarre and pretty clearly untrue.
Leave aside for the moment the suggestion that Flynn was somehow employed by Powell, as opposed to simply a fellow traveler attempting to ride the Kraken on an ocean of Big Lies. About ten seconds after that bonkers press conference where Rudy Giuliani leaked hair dye all over the lectern at the RNC and Powell babbled nonsense about Venezuela stealing the election for Biden, all the Trump minions took one giant step back from Powell.
“Sidney Powell is practicing law on her own,” Giuliani and Trump campaign lawyer Jenna Ellis said on November 22, 2020. “She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”
So unless this conversation between Bannon and Flynn took place in the three days between that disastrous presser and Sidney’s unceremonious defenestration, she was unambiguously not Trump’s lawyer.
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The surreply also gives us a peek at Bannon’s strategy going forward and explains why he’s so hot to get his hands on any Office of Legal Counsel memos. Their theory is that there are “several opinions of the Office of Legal Counsel (‘OLC’) which stated that when executive privilege was at stake, if the Congressional Committee had a rule which prohibited counsel for the President from being present to protect the privilege, the subpoena was unlawful, illegal and unconstitutional and therefore incapable of being enforced either civilly or criminally.”
Of course, this rests on the theory that there was a valid privilege to be asserted over Bannon’s conversations three years after Trump fired him from the White House. But the Committee does have a rule barring counsel for third parties attending depositions, so, according to Bannon’s lawyers, “The net result of those opinions was that the Bannon subpoena was null and void, and Bannon was advised that he did not have to attend the deposition or produce documents because the subpoena was void.”
In fact, they go so far as to insist that Bannon never had to negotiate with the Committee at all because “Costello was under no obligation to reveal to Staff Counsel that Mr. Bannon had a complete defense to the subpoena’s demands based upon the OLC opinions.”
It’s a bold strategy, Cotton, and one that rests on the very thin reed of the former president’s actual invocation of privilege over Bannon’s communications with the Trump campaign in late 2020 and early 2021. And that argument was so patently ridiculous that even Trump’s lawyers never tried it.
On October 6, Trump campaign lawyer Justin Clark wrote to Costello urging Bannon to “where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the subpoena” and “not produce any documents concerning privileged material.”
Clearly this was not a blanket invocation of privilege, and when Clark realized that Costello was treating this as a permission slip to blow off the Committee entirely, he fired off another letter on October 13 clarifying his position.
“Just to reiterate, our letter referenced below [the October 6 letter] didn’t indicate that we believe there is immunity from testimony for your client,” he wrote. “As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call.”
So, to be clear, Bannon’s case rests on an oral invocation of executive privilege; heard only by his lawyer and denied by the counsel for the former president; covering a time when Bannon was not part of the executive branch; based on a non-binding OLC memo which probably refers to a lawyer from the executive branch being present, not private counsel; and in support of an advice of counsel defense which is barred by precedent.
Cool. Carry on, fellas.
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.