Steve Bannon Is Back On His Bullsh*t

Bigly.

Former Trump Strategist Steve Bannon Arrested On Fraud Charges Related To Crowdfunded Built The Wall Campaign

(Photo by Stephanie Keith/Getty Images)

Steve Bannon’s lawyers are pounding table and throwing it all up against the wall in the latest motion to compel discovery in their client’s contempt of Congress case. Yesterday they made the, umm, interesting argument that the government must disclose internal Justice Department deliberations regarding the decision not to prosecute Mark Meadows and Dan Scavino for refusing to testify to the January 6 Select Committee.

“The discovery sought is material to the preparation of Mr. Bannon’s defense, falls within the Court’s earlier oral Order directing production from the Government, and is believed to constitute Brady/Giglio material,” they insist, apparently with a straight face.

How could prosecutorial deliberations regarding the chief of staff and Trump’s communications flack, who were actually employed in the White House on January 6, 2021, be relevant to, much less discoverable by, a guy who got fired from government service in 2017?

Well, see, if you pretend that there’s no difference between current and former government employees, then it makes complete sense. And if you magically wish away the sentence opining that Meadows is “immune from compelled congressional testimony on matters related to his official responsibilities,” you can pretend that the letters from Trump’s lawyer to Meadows and Bannon instructing them to invoke privilege “to the fullest extent permitted by law” are identical and “executive privilege was invoked with respect to these two men in the exact same manner.”

So that’s exactly what Bannon’s lawyers have done.

Bannon’s theory is that his refusal to testify or produce documents about the events of late 2020 and early 2021 is justified by Office of Legal Counsel Memoranda saying that executive privilege covers executive branch employees even after they return to civilian life and that the DOJ will not prosecute government employees who refuse to testify under a valid claim of executive privilege.

Sponsored

The problem is that US District Judge Carl Nichols already rejected this line of reasoning, noting in an evidentiary hearing two weeks ago that it was “more than a stretch” to characterize Bannon’s position as analogous to that of former government employees being asked to testify about their time in government service. And while the court hasn’t issued a written order yet, it seemed pretty clear that it did not accept Bannon’s claims that Trump made a blanket invocation of executive privilege, even extending to Bannon’s conversations with third parties about the events leading up to the Capitol Riot.

But Judge Nichols did make one concession to Bannon on that score, ordering prosecutors to disclose any “statements or writings reflecting official DOJ policy, such as an opinion of the Office of Legal Counsel or the position of an entire division or litigating group, whether those statements are public or not, if such writings relate to the department’s policy on prosecuting or not prosecuting government or former government officials raising executive privilege claims or defenses of immunity or similar issues.”

And if you squint real hard and cross your fingers behind your back, you can argue that internal deliberations on whether to prosecute Meadows and Scavino constitute “official DOJ policy,” and must be disclosed.

They also continue to argue that Bannon’s status as a private citizen is irrelevant, likening his coordination with the Trump campaign to Henry Kissinger being “consulted by the President on the Ukraine situation or the Exxon CEO on the economy, with the expectation that such communications would be privileged and confidential.”

It would be “absurd, illogical, and completely unsupportable” to claim that such communications are not covered executive privilege, they scoff, adding that, even if the court bars Bannon from asserting the OLC memos as part of his “entrapment by estoppel” defense, he’s still entitled to get discovery on whether they played a role in the DOJ’s declination to prosecute Meadows and Scavino.

Sponsored

“The DOJ declination papers for Meadows and Scavino are directly relevant to the reasonableness of Mr. Bannon’s belief if based in any part on the invocation of executive privilege,” they argue, bizarrely suggesting that the DOJ’s position in June of 2022 somehow informed Bannon’s decision to blow off the committee in October of 2021.

The whole thing is just offensively horseshit. But if you’re going to argue that Bannon spends his nights tucked up by the fire, swaddled in three layers of PJs poring over decades-old OLC memos to ensure that everything he does is legally correct, well, good luck to ya.

US v. Bannon [Docket via Court Listener]


Liz Dye lives in Baltimore where she writes about law and politics.