Sure Steve Bannon Bannon Got Fired From The White House In 2017. What This Brief Presupposes Is… Maybe He Didn’t?

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The number “2017” appears just once in Steve Bannon’s latest filing in his contempt of Congress case, and that is in reference to a DC Circuit opinion issued that year. Reading his briefs, you might well come away with the impression that the podcaster spent the entirety of the Trump administration toiling away in the Old Executive Office Building, instead of being fired in 2017 and subjected to a nasty barrage of tweets calling him “Sloppy Steve.”

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This is no accident, since Bannon claimed to be protecting executive privilege when he defied the January 6 Select Committee’s subpoena for documents and testimony. And as dubious as former White House Chief of Staff Mark Meadows’ assertions of privilege might be, it’s simply nonsense to claim a durable executive privilege lasting three years after Bannon left the executive branch for conversations with Trump and his campaign apparatchiks.

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And yet, that is the argument that he’s making, albeit dolled up in an advice of counsel defense. In Bannon’s telling, he reasonably relied on his attorney Robert Costello’s legal opinion that Trump’s demand to invoke executive privilege “where appropriate” entitled him to completely flip off the Committee, refusing to appear for testimony, release a privilege log in response to the subpoena for documents, or even supply links to his public podcasts discussing the January 6 protest.

Costello has actually entered an appearance in this case, although he will have to waive privilege and testify if Bannon is allowed to present his advice of counsel defense to the jury. Toward that end, Costello submitted an affidavit Friday outlining the advice he gave to Bannon. It includes reference to a 2019 Office of Legal Counsel Memo on Attempted Exclusion of Agency Counsel from Congressional Depositions of Agency Employees which allows agency employees to refuse to appear without agency counsel and states that “the criminal contempt of Congress statute does not apply to the President or presidential subordinates who assert executive privilege.”

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A brief filed by Bannon’s lawyer Evan Corcoran cites a different OLC opinion on the Immunity of Former Counsel (i.e. Don McGahn) to congressional process, and one produced on January 8, 2021, a mere two days after the Capitol Riot, explaining that an executive branch employee’s obligation to protect executive branch confidences outlasts his government service.

But you don’t have to be Learned Hand to spot the slippage here. None of those OLC opinions describe communications where one or both parties is outside the executive branch, as Bannon was during the entirety of the period relevant to the Committee’s inquiry. So these opinions are no more germane to the issue than any rule chosen at random from the Federal Register.

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Aside from that, the Justice Department argues that Bannon should not be permitted to present an advice of counsel defense to the jury at all. The government cites multiple federal court decisions, including language from a 1963 Supreme Court’s 1963 ruling in Yellin v. US in which the Court wrote “[o]f course, should Yellin have refused to answer in the mistaken but good-faith belief that his rights had been violated, his mistake of law would be no defense.”

“The deliberate failure to comply with a congressional subpoena—regardless of motivation—constitutes the crime of contempt,” prosecutors write. “Any evidence or argument relating to the Defendant’s or his counsel’s views of the law, or the Defendant’s reliance on it, should therefore be excluded at trial.”

US District Judge Carl J. Nichols, whose docket is already sagging under the weight of a slew of January 6 riot defendants, gets to wade through this mess. Bannon and the Justice Department are also having a nasty discovery dispute over prosecutorial deliberations, as well as the Committee’s internal discussions preceding the contempt referral to the DOJ — information which doesn’t appear to fall under Brady or Giglio, and is anyway not in possession of the DOJ.

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Bannon’s lawyers are also making weird noises about a possible “public authority defense, such as the defense of entrapment by estoppel.”

So, in case you were wondering if this could get stupider, the answer is a resounding YES.

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US v. Bannon [Docket via Court Listener]

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

Topics

Capitol riot, Executive Privilege, Government, Steve Bannon