Published by The Lawfare Institute
in Cooperation With
Stephen Bannon has defied the Jan. 6 Committee’s subpoena for documents and testimony. Yet his lawyer contends, in a letter to the committee, that “Mr. Bannon’s communications with President Trump on the matters at issue in the Subpoena are well within the scope of both the presidential communications and deliberative process executive privileges.” As a result,“in order to preserve the claim of executive and other privileges,” Bannon will not testify or provide documents until the committee “reaches an agreement with President Trump” or there is “a court ruling as to the extent, scope and application of the executive privilege.”
Bannon is the only witness subpoenaed by the committee who has adopted this stance of outright defiance, at least so far. The three other Trump advisors subpoenaed at the same time as Bannon—Kash Patel, Dan Scavino and Mark Meadows—have, unlike Bannon, either “engaged” with the committee or, in Scavino’s case, delayed service of the process by managing to evade service of the subpoena for some time.
Bannon thus represents the first challenge of the committee’s ability to compel the production of information from those who remain loyal to Trump. The committee’s reaction to Bannon’s defiance will set a precedent. And there is no doubt Meadows, Scavino, Patel, and others, like Trump’s Justice Department ally Jeffrey Clark, are watching carefully what happens with Bannon—who, unlike the other three, was not a government employee during the time at issue. Because Bannon was not in government, his privilege claim is weak, even extremely weak—but that will not stop the Justice Department from taking it seriously. The Justice Department will take into account its own past opinions, some of which take broad positions on the application of executive privilege to conversations between the president and private citizens, as well as its institutional interests. And that means that the committee should think strategically about how to best position itself for a prosecution of Bannon for contempt of Congress.
Unsurprisingly, the committee and its members are adamant they will enforce its subpoenas. The committee has made clear it is “not bluffing,” and appears poised to hold Bannon in contempt of Congress and set up a vote by the full House to refer Bannon to the Department of Justice for prosecution. (Quinta Jurecic and Molly Reynolds have described that process here.) But what happens next? Will the Department of Justice prosecute? Biden made clear he supports such prosecution. Shortly afterward, however, the Justice Department emphatically clarified it would not be swayed by Biden’s wishes but would make its own independent choice.
I do not pretend to know what the Justice Department will do. But the current conversation surrounding that decision is replete with casuistry and misunderstanding. The language of Bannon’s letter is quite familiar; his defiance based on claims of needing to protect executive privilege—what I have called a type of prophylactic executive privilege—occurred quite frequently when Trump was president and has numerous, bipartisan historical analogs. There are two enormous differences between Bannon’s claim and past defiance by executive branch officials: 1) Trump, the person asserting privilege, is no longer president and 2) Bannon did not work in the government at the relevant time.
To many—lay observers and lawyers alike—these two differences, taken either independently or together, render any claim of executive privilege related to Bannon’s testimony specious. Under that view, the prosecution of Bannon poses no difficulty. Others gloss over these differences and suggest that if the Justice Department prosecutes Bannon it will be acting in a manner inconsistent with past opinions from the Office of Legal Counsel (OLC) that prohibit the prosecution of executive branch officials who withhold information from Congress pursuant to a president’s claim of privilege. Both arguments are overstated. Because he was a private citizen during the relevant time and the claim of privilege has been made by a former president, Bannon does not fit within the previous OLC opinions. But those two facts do not—as a practical matter—negate all complications with prosecution.
The committee’s current approach to Bannon may ultimately result in a successful prosecution, but it will pose some difficulties. In my view, there is a better way. By calling Bannon and Trump’s bluff, the committee can negate all of Bannon’s excuses and defenses and unburden the Justice Department of deciding unresolved constitutional questions in which it has institutional interests. It may be too late, but if the committee wanted to, it could make it easy for the Justice Department to prosecute Bannon and those that follow; or, more accurately, make it nearly impossible for the Justice Department not to do so.
The Difficulties With Prosecution
I do not think any of these obstacles will necessarily prevent the Justice Department from prosecuting Bannon. And I am not suggesting the arguments Bannon and Trump will make should be accepted on their merits. As a practical matter, however, the Justice Department will have to wrestle with these issues, most of which are unresolved and all of which have implications that go far beyond the unique facts of the Jan. 6 investigation.
The first question is, of course, executive privilege. Past OLC opinions make clear that the Justice Department will not prosecute an official for contempt of Congress who withholds information from Congress pursuant to a claim of privilege. That policy originated in a 1984 memorandum and has been adopted and applied by every administration since. Bannon does not neatly fit within the scope of that opinion, however. As noted, he was a private citizen at the relevant time, and the privilege claim originates with the former president, not the incumbent.
But Bannon’s position as a private citizen does not, in the Justice Department’s view, automatically negate any application of executive privilege. According to the Supreme Court and U.S. Court of Appeals for the District of Columbia Circuit, the justification for executive privilege is the need to ensure that those advising the president do not “tempor candor with a concern for appearances” or “forego” certain duties “for fear of losing deniability.” In a 2007 opinion, then-Solicitor General and Acting Attorney General Paul Clement concluded that this rationale applies equally to individuals outside the executive branch who advise the president. As Clement explained, “[t]hat communications involve individuals outside the Executive Branch does not undermine the President’s confidentiality interest” because the communications “occurred with the understanding that they would be held in confidence” and related to the president’s decisionmaking about official duties.
Although the Justice Department did not issue any formal opinions or statements about the application of executive privilege to presidential conversations with non-executive branch officials between 2007 and 2019, the issue has occasionally come up, particularly when presidents have relied on outside experts. And in 2019, the Trump administration twice relied on the rationale in the 2007 opinion to direct Corey Lewandowski and Kris Kobach—neither of whom held official positions in the executive branch—to refrain from answering questions based on executive privilege. Given that the Justice Department, and OLC in particular, jealously protect the institutional prerogatives of the executive branch, the Justice Department will almost certainly not retract the 2007 opinion and opine that executive privilege never applies to the conversations between a president and a private citizen.
What about the fact that the only claim of privilege came from Trump, himself now a private citizen, and not Biden? As I explained at length previously on Lawfare, the Supreme Court has recognized—mistakenly in my view—the right of a former president to “assert” executive privilege. The current president’s views take priority over the former president’s views under governing law. But the extent of the former president’s interest remains unsettled, particularly if the current president has not addressed the issue.
Some have suggested that Bannon has no possible privilege claim because Biden has waived executive privilege in the context of the Jan. 6 investigation. But that is not accurate. To date, Biden has waived privilege explicitly only for the testimony of former Justice Department officials and for the first tranche of documents that were requested by the Committee from the National Archives. The White House has indicated that, as a general matter, Biden regards the events of Jan. 6 as “extraordinary” circumstances and an “apparent effort to subvert the Constitution itself” and thus does not believe executive privilege is appropriate. But he has not formally addressed Bannon’s testimony. He may very well waive any application of privilege that would cover Bannon or other witnesses; if he did, that would allow the Justice Department to disregard any assertion by Trump that privilege applies. Biden would need to do so before a contempt vote, however, so that the witness had notice of that waiver. Biden’s time is thus running out quickly. Moreover, waiving the privilege may be perceived to acknowledge that executive privilege has any application to Bannon at all, something Biden may be loathe to do. Assuming Biden remains silent, the Justice Department would thus be prosecuting an individual who was acting pursuant to a claim of privilege by a former president that was neither upheld nor waived by the incumbent.
Finally, there are a number of issues that arise in any prosecution for contempt of Congress that the Justice Department will consider. Under the contempt statute, the prosecutor must prove that the questions Bannon refused to answer and the documents he refused to produce were “pertinent to the question under inquiry.” The Supreme Court has strictly enforced that requirement, holding that a person compelled to testify “is entitled to have knowledge of the subject to which the interrogation is deemed pertinent” and “[t]hat knowledge must be available with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense.” It cautioned that the “‘vice of vagueness’ must be avoided.” In addition, witnesses can claim privileges other than executive privilege—such as the Fifth Amendment’s privilege against self-incrimination. And a contempt defendant can defeat the charges by showing that any aspect of the subpoena exceeds the authority delegated to the committee by the full House.
In Bannon’s case, these considerations are not likely to trouble the Justice Department. Bannon did not refuse to answer specific questions or claim any Fifth Amendment privilege; he refused to even show up as required by the subpoena. The committee has a relatively specific charter—to investigate the events of Jan. 6—and its letter to Bannon requiring his testimony and the production of documents is broad but clearly related to that narrow scope of investigation. Still, Bannon would almost certainly attempt to make some of these arguments in defending a contempt prosecution, likely focused on the vagueness and breadth of the committee’s information request. The Justice Department will most likely be forced to rebut them.
A Better Path
Accordingly, if everything continues on this course, the Justice Department would be asked to prosecute for contempt of Congress an individual who 1) potentially fits within the Justice Department’s own view of the scope of executive privilege and 2) is following a direction from a former president about that privilege that has not been countered by the incumbent president. Moreover, it will have to defend against arguments that the committee’s request for testimony and documents was overbroad and somewhat vague.
Not only are the issues involved complex, they implicate institutional interests of the executive branch that the Justice Department may be hesitant about eroding. For example, the Justice Department is unlikely to argue that a former president’s claim of privilege should be given no weight. It has stated the opposite previously—arguing that:
although the privilege belongs to the Presidency as an institution and not to any individual President, the person who served as President at the time the documents in question were created is often particularly well situated to determine whether the documents are subject to a claim of executive privilege and, if so, to recommend that the privilege be asserted and the documents withheld from disclosure.
Disclaiming that position today would undermine the ability of former presidents of both parties to assert claims of privilege in the future. Similarly, whether or not the application of executive privilege to conversations with private individuals is correct as a legal matter, the Justice Department is unlikely to categorically eliminate it. Doing so would undermine presidential authority vis a vis Congress, something the Justice Department rarely, if ever, does.
There is a way to eliminate these potential obstacles, however. And it would work not only with Bannon but also with former executive branch officials who are similarly inclined to hide behind Trump’s exhortations about privilege.
The committee could eliminate any potential claim of executive privilege by crafting specific information demands that, by definition, preclude its application. More specifically, the committee could demand testimony and documents from Bannon and others regarding “any conversations with President Trump relating to the January 6 rally and assault on the Capitol that did not relate to his official duties as president and that related only to his personal and political interests.” In doing so, the goal of the committee would not necessarily be to gain more information or increase the chances that Bannon or anyone else would testify. Instead, the purpose would be to call Bannon and Trump’s bluff—to accept, rather than fight, their spurious claim that executive privilege is potentially applicable to some aspects of Bannon’s testimony and then exclude those aspects by definition, rendering the privilege defense meaningless and the Justice Department’s decision to prosecute for defiance straightforward. Fighting that claim might be appealing—but it would take time that the committee, with its goal of wrapping up its investigation by the spring of 2022, doesn’t have.
Executive privilege protects only conversations relating to a president’s official capacity. In Nixon v. Administrator of General Services, the Supreme Court explained that executive privilege is “limited to communications ‘in performance of (a President’s) responsibilities of his office.’” (emphasis added) The Justice Department has similarly concluded that presidential advisors have testimonial immunity only for testimony “about matters that arise during their tenure as presidential aides and relate to their official duties,” not their personal interest. (emphasis added) Executive privilege protects the president’s exercise of his constitutional authority as president; it does not protect the conversations with or advice provided to the president about his personal or political interests. In the related context of presidential immunity, the Supreme Court in Clinton v. Jones made clear that its reasoning for providing immunity for the performance of “official duties” “provides no support for an immunity for unofficial conduct.”
The same is true of executive privilege. The Supreme Court in United States v. Nixon accepted a qualified executive privilege because it found such confidentiality “fundamental to the operation of Government” and derivative of “the supremacy of each branch within its own assigned area of constitutional duties.” (emphasis added) The privilege “flows from the nature of enumerated powers” and covers presidential communications undertaken “in the exercise of Art. II powers.” The privilege is thus a governmental privilege, protecting official duties in furtherance of the president’s constitutionally assigned responsibilities. Executive privilege has no applicability to actions taken in the president’s personal capacity.
The distinction between a president’s official capacity and personal capacity—the “two bodies”—is not always an easy one to decipher, but there is no doubt that, as a theoretical and legal matter, there is a distinction between official actions and personal ones. As Daphna Renan explained on Lawfare, in Trump v. Mazars, the Supreme Court rejected Trump’s attempt to merge the two bodies in the context of executive privilege, refusing to “transplant” the protections of executive privilege to “nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.” Susan Hennessey and Scott Anderson explained the long tradition—broken by the Trump administration—of fastidiously separating political activities from official roles. And OLC has opined on the method of dividing expenses of a presidential trip between taxpayer dollars—used for “official” functions—and political funds—used for political activities. Although recognizing that the president, “consistent with [his] official duties,” may perform political functions, OLC urged that the expenses “should normally be judged to be official or political depending on the character of the event giving rise to the expense.”
Not much is public about Trump’s actions leading up to and on Jan. 6. But it is hard to imagine that the most relevant of Bannon’s conversations with Trump in any way related to the president’s “official duties.” The initial rally on the Mall was a political rally paid for with private money, not an official event paid for with taxpayer dollars. And the events that ensued were as far from “official acts” as one can imagine. For these reasons, the Department of Justice has already concluded that Rep. Mo Brooks was not acting in his official capacity when he spoke at the rally. As White House Counsel Dana Remus wrote in explaining why President Biden was waving privilege for the first batch of documents from the National Archives, “[t]he constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”
It is possible that Bannon spoke with Trump at some point about his official duties, particularly if Bannon and Trump adopt a broad definition of “official” duties. But that is why the committee’s current approach raises complications for the Justice Department. Given the broad scope of the subpoena, Bannon may have—at least in the historical view of the Justice Department—a plausible defense, particularly if Biden remains silent and never formally rejects any claim of privilege over Bannon’s testimony.
A demand for testimony and documents that, by definition, excluded the possibility of executive privilege would render all of Bannon’s current defenses moot. And it would have the added benefit of eliminating any objection Bannon may have about the vagueness or breadth of the committee’s subpoena. A subpoena for information about any activities Bannon engaged in that related solely to Trump’s personal and political capacity would, in short, eliminate any reason the Justice Department might have for refusing to prosecute Bannon’s defiance.
The committee could take this approach quite easily. It could discuss Bannon’s contempt, acknowledge it without granting the validity of his objection, and reissue a new subpoena that eliminates that objection. The new subpoena could specify with precision the events about which the committee would like testimony and documents and make clear that the committee seeks information related only to Bannon’s interactions with Trump acting in his personal and political capacity. If Bannon remains defiant, the committee and full House can refer him for prosecution, and he would no longer have any executive privilege defense. Executive privilege, by definition and without debate, would not apply. In the unlikely event that Bannon did appear, the committee would need to be sure to ask questions that related only to Trump’s personal capacity. But, in my view, the committee would be sacrificing very little, if anything, in adhering to this limitation.
Bannon may decline to answer and would likely argue that acts the committee suggested were done in Trump’s personal capacity were actually done in his official capacity and were thus outside the scope of the subpoena. But I do not think that argument would ultimately hold much sway with either the Justice Department considering prosecution or a court considering contempt. And it would certainly hold less sway than the claim that executive privilege may at times protect conversations outside the executive branch. Neither the Justice Department nor the courts will accept the view that the Committee’s investigation of the events leading up to a physical assault on the operation of government and the Constitution relates to the president’s exercise of his “constitutional duties” under Article II.