The Guardian was first to report Bannon’s offer on Sunday, noting that it had obtained a letter from his attorney Robert Costello sent to Committee Chairman Bennie Thompson that stated Bannon was prepared to cooperate because “circumstances” had changed. Trump, Costello wrote, decided to waive executive privilege over Bannon’s testimony because it would “be in the best interests of the American people.”
Costello, it should be pointed out, represents Trump attorney Rudy Giuliani.
And notably, in a letter from the 45th president attached to the letter to chairman Thompson, Trump also claimed he had invoked privilege over Bannon as far back as October 2021, an attempt to give Bannon cover for his cold shoulder to the committee.
But here’s the rub: According to the Jan. 6 committee and the Department of Justice, there was never an invocation of executive privilege from Trump over Bannon, who, for the record, was officially done with his White House stint in 2017.
With the letter made public, in the wee hours on Monday, U.S. Attorney Amanda Vaughn filed a motion in a district court in Washington, D.C., emphasizing that Bannon’s offer to cooperate with the committee comes as he has refused to hand over documents sought by the probe for several months.
“The defendant apparently has not told the committee he wishes to provide documents responsive to the subpoena, so his eleventh-hour efforts do nothing to begin to cure his failure to produce records. Instead, his continued failure to comply with the subpoena’s document demand while claiming he now will testify suggests his actions are little more than an attempt to change the optics of his contempt on the eve of trial, not an actual effort at compliance,” Vaughn wrote.
The only thing that has changed since Bannon first refused to comply with the Jan. 6 committee subpoena is that “he is finally about to face the consequences of his decision to default,” the five-page brief states.
Judge Carl Nichols in Washington, D.C., set a hearing at 10 AM on Monday and is expected to render a decision soon on whether to quash the committee’s subpoena and potentially, as Bannon has requested, delay his contempt trial start date from July 18 until a later point.
Nichols rebuffed an attempt by Bannon to have the trial tossed out completely this June.
When Bannon claimed he was protected by executive privilege because of his role as a White House employee, Nichols said that dog would not hunt: Bannon had returned to the private sector long before Jan. 6. Nichols also rejected a bid by Bannon to paint the committee as illegitimate. That argument has not worked yet and has been rebuffed by most courts, including the Supreme Court.
And when Bannon claimed Trump specifically asserted privilege over him, Nichols was unable to find anything on the record, including in correspondence from Trump’s attorneys, to suggest that Bannon was expressly instructed not to appear or to withhold documents.
Daily Kos has reported for months now that Trump never asserted executive privilege over Bannon because there was no indication on the record that he had.
And per the July 11 filing from Vaughn, Justin Clark, an attorney for Trump, has said the same.
Vaughn noted that “on June 29, 2022, former President Donald Trump’s attorney [justin Clark], who sent the letter on which the defendant [Steve Bannon] claimed his noncompliance was based, confirmed what his correspondence has already established:
- that the former president never invoked executive privilege over any particular information or materials;
- that the former president’s counsel never asked or was asked to attend [Bannon’s] deposition before the select committee;
- that Bannon’s attorney misrepresented to the committee what the former president’s counsel has told Bannon’s attorney, and
- that the former president’s counsel make clear to Bannon’s attorney that the letter provided no basis for total noncompliance.”
“Even the defendant’s claim that the reason he is now willing to testify is because the former president is ‘waiving’ executive privilege is subject to question given all of the evidence and law that has been addressed in this case, of which he must be aware, demonstrating that executive privilege never provided a basis for total non-compliance in the first place,” federal prosecutors argue.
A representative for the Jan. 6 committee did not immediately respond to Daily Kos for comment.
DOJ Motion in Limine Response to Bannon July 11 2022 by Daily Kos on Scribd
This latest request from Bannon should be regarded skeptically. As noted by former federal prosecutor and law professor Barbara McQuade, the fastest way to resolve any of this is for the Department of Justice to secure Bannon’s contempt conviction and consider granting him immunity so a grand jury could compel his testimony.
Marcy Wheeler, an independent journalist, highlighted these points and others in a post published Monday and openly challenged the original reporting from The Guardian and others. Importantly, when Vaughn noted in the filing that Trump “never invoked executive privilege over any particular information or materials,” Wheeler also noted that Bannon’s attorneys had already received an FBI report of Clark’s interview 24 hours after it was held.
Politico reported that “two sources familiar with Clark’s FBI interview said the session lasted 45 minutes and was limited to a discussion of Bannon’s case.”
Clark reportedly did not bring up his discussions with Trump because they were treated as privileged between an attorney and his client.
It is also worth noting that Bannon has tried to subpoena Speaker of the House Nancy Pelosi as well as all members of the January 6 committee. David Schoen, another attorney for Bannon, has argued that the court should uphold Bannon’s demand because otherwise it would demonstrate a “terrible irony” given the committee’s many subpoenas.
In court Monday, according to WUSA9, Doug Letter, counsel for the House of Representatives, urged the judge to disregard this request, noting that members of Congress are protected from subpoenas by the speech and debate clause of the Constitution.
Steve Bannon, crony extraordinaire to twice-impeached Trump, found in contempt of Congress
Prosecutors say they are onto Steve Bannon’s attempted manipulation of his own case
This story is developing.