This has been a big week when it came to what Steve Bannon didn’t say, why he didn’t say it, and who told him not to say anything. It’s also been a showcase of the Trump White House’s ability to insist that it is cooperating with the Trump–Russia investigation, while openly doing everything in its power to obstruct that investigation.
Appearing before the House Intelligence Committee on Tuesday, Bannon invoked executive privilege not only about things that happened in the White House, but about things that happened in the transition period, during the campaign, and after he left his position in the White House. Bannon’s interpretation means that executive privilege now includes conversations that didn’t involve the executive, conversations that occurred before there was an executive, and those that happened when he was employed by the executive. It’s a position that made even Republicans on the committee fume.
Adding to the frustration was a frequent waiting period, because Steve Bannon’s lawyer was in real time contact with the legal team at the White House, getting clearance on which questions were safe to answer. That turned out to be more or less none, making Bannon’s appearance all but worthless.
“This was effectively a gag order by the White House preventing this witness from answering almost any question concerning his time in transition, in the administration, and many questions even after he left the administration.”
But while everyone was watching Bannon’s lawyer talk with the White House, the White House had a different message.
White House Chief of Staff John Kelly said during an interview with Fox News on Wednesday that the White House didn’t urge Bannon to invoke executive privilege.
“Steve has had very, very little contact with the White House since he left,” aside from a few phone calls, Kelly said.
Which shows that the disconnect isn’t between Bannon and the White House. It’s between the White House and the truth.
Bannon’s failure to cooperate prompted Republicans do what they’ve been reluctant to do to up to this point—issue a congressional subpoena. But flipping Bannon from cooperating witness to compulsory made no difference in his refusal to talk.
The committee wants to put Bannon back in the chair, but that may not change anything. Because the people who have “had very, very little contact” with Bannon are still involved.
White House lawyers are unlikely to change their minds about instructing Bannon not to answer the committee’s questions about his time working on the presidential transition team or in the White House, the person added.
But there is one place where those White House’s remote control signals just can’t reach.
Steve Bannon has struck a deal with special counsel Robert Mueller's team and will be interviewed by prosecutors instead of testifying before the grand jury, two people familiar with the process told CNN. He is expected to cooperate with the special counsel, the sources said.
Bannon was originally subpoenaed by Mueller to be deposed before the grand jury, bypassing the usual office interview. The purpose of making that move was likely to inform Bannon—who had been in the midst of an apology tour after his comments to author Michael Wolff became the center of the new book, Fire and Fury—that he was going to have to talk. He wouldn’t be allowed to sullenly refuse to answer and make sneering complaints about the legitimacy of the investigation, which was also part of his appearance before the House committee.
The prospect of having to appear in front of the jury was enough to convince Bannon to negotiate. He has reportedly agreed to be interviewed by Mueller without being able to make claims of privilege. The interview will also reportedly be subject to the same perjury rules as grand jury testimony. It’s not clear that Mueller has agreed to actually withdraw the grand jury subpoena. It may still be dangling over Bannon as a little extra incentive to be cooperative.
Even with the few words he spoke at the hearing, Bannon did manage to let slip one piece of news.
Bannon admitted that he'd had conversations with Reince Priebus, Sean Spicer and legal spokesman Mark Corallo about Don Junior's infamous meeting with the Russians in Trump Tower in June 2016.
The timing and content of those situations should speak to both charges of conspiracy and obstruction—and gives Robert Mueller something else to ask Bannon when they speak.
While Bannon’s actions this week appear to be chaotic, and the White House denial of actions that dozens of congressmen and staffers saw firsthand may seem incomprehensible, there is someone driving this strategy.
A battle over what President Donald Trump’s former chief strategist can tell Congress has thrown a glaring spotlight on the potential conflicts of interest surrounding White House Counsel Don McGahn and how long he will remain in that job.
McGahn’s office was deeply involved in instructing Steve Bannon on which questions from the House Intelligence panel’s Russia probe he shouldn’t answer, according to a person familiar with the matter. But McGahn was interviewed by investigators for Special Counsel Robert Mueller looking into Russian election meddling -- and he shares a lawyer with Bannon.
The person who is instructing Bannon to keep his mouth closed, has a direct personal interest in every word that Bannon says. And both of them have a deep investment in covering up for Trump.
Over the course of more than nine hours Tuesday, Bannon’s testimony was interrupted several times so that his lawyer, William Burck, could call the White House to ask whether he could answer certain kinds of questions, according to a person familiar with the matter.
That person clearly wasn’t John Kelly.