The Bannon Defense
is not much even if you think he has one.
This Robert Parloff column was written on April 27, 20221 for the Lawfare Blog.
A brilliant analysis and given that Bannon’s defense is up tomorrow a critical one.
Bannon’s defense rides a weird third rail of idealism about Bannon’s employment, his lawyer’s efforts on his behalf, and accepting circuitous legal arguments.
“The gist of the injustice Bannon’s team posits is captured in the following passage in their initial brief on the “advice of counsel” issue:
Picture this. You are a former top advisor to the President of the United States. You receive a subpoena from a congressional committee. The subpoena includes 10 pages of arcane instructions. It seeks testimony and documents about communications with your former boss while he was President. You are not a lawyer. You retain a lawyer. He is a seasoned former federal prosecutor who has experience with subpoenas. He explains that the former President has asserted executive privilege, and that based on long-standing U.S. Department of Justice authority, you should not appear for deposition or provide documents. He tells you that he will try to reach an accommodation with the Select Committee. You follow the advice of your attorney. Shortly thereafter you are charged with a crime and face up to two years in jail.
That’s a compelling narrative—at first blush. But it omits at least three important and countervailing points. First, the seasoned lawyer’s advice was dubious on its face insofar as a great deal of the material covered by the subpoena was not plausibly privileged under any reading of the law of executive privilege. (I sent Costello a brief summary of my views, seeking comment. In response, one of his co-counsel in the Bannon case, David Schoen, sent an eight-paragraph rebuttal. He writes that “the premise of your assertion mixes concepts and at least implies one erroneous premise,” and that “any reading of the relevant OLC opinions would demonstrate the error of that premise.” His full response can be found here.)
To be sure, the OLC has issued, over the decades, several opinions which do claim that high-level presidential advisors enjoy an “absolute immunity” from congressional subpoenas that would allow them to refuse even to show up for a deposition. Lawfare has had occasion to analyze these and related OLC memoranda in several in-depth posts and podcasts in recent months. As Lawfare’s commentators have noted, however, these opinions lack the force of law outside of the executive branch and have been repeatedly and caustically rejected by U.S. district judges whenever they have been tested in court.
Far more important, no OLC opinion has ever claimed that a private citizen, subpoenaed in connection with his or her conduct as a private citizen, was totally immune from a congressional subpoena. That was Costello’s novel claim. While there was precedent for allowing a president to assert executive privilege over specific communications he or his advisors have had with private citizens, that’s different from claiming that a private citizen subpoenaed to provide information about actions taken in his private capacity has absolute “immunity” to stonewall.
Second—and I won’t spend much time on this because, again, Lawfare has recently and repeatedly addressed this issue at length—none of these OLC opinions gives guidance about a situation, like Bannon’s, in which the current president has actually waived executive privilege, as President Biden did in this letter, and it was a former president that was purporting to assert it.
But third—and most remarkably—it’s not even clear that former President Trump ever properly asserted executive privilege over Bannon’s documents or testimony. As explained in greater detail below, Justin R. Clark, Trump’s counsel, played an elusive cat-and-mouse game when it came to invoking privilege. He refused Costello’s repeated entreaties to directly engage with the select committee. Moreover, Clark repeatedly told Costello that Costello was mischaracterizing Trump’s stance in Costello’s own letters to the committee. And he specifically told Costello that Trump was not claiming that Bannon enjoyed any broad immunity from responding to the subpoena at all.”
A great read.
https://www.lawfareblog.com/why-steve-bannons-contempt-prosecution-revolves-around-his-attorney-robert-j-costello