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Bannon, a private citizen during the period from which Congress seeks records, served Trump in an official capacity as a strategist from only January to August 2017, when Trump fired him.
Bob Woodward and Robert Costa in their book Peril, reported Bannon was also just one among many of Trump’s confidantes—both official and unofficial—who assembled at the Willard Hotel in D.C. on Jan. 5.
That is where it is believed Bannon and others advised Trump to effectively overturn democracy and undo the rightful victory of now President Joe Biden.
In September, Bannon admitted on his podcast to being with Trump at the Willard Hotel and confirmed that the two discussed how to end Biden’s ascending presidency. Trump’s onetime attorney Rudy Giuliani and law professor John Eastman were also on hand at the Willard; the group reportedly conspired how to stop or delay the already forgone certification of election results.
Eastman is responsible for authoring a memo to former Vice President Mike Pence outlining a scheme—albeit nonsensical and without legal or constitutional merit—to overturn the election results. Notably, during Thursday’s vote, Representative Greg Pence of Indiana, Mike Pence’s brother, did not cast a vote. His office did not immediately return a request for comment.
“Mr. Bannon’s statements the day before the Jan. 6 attack, and his association with both the Trump inner circle and outside groups involved in the ‘Stop the Steal’ events, make his testimony about the Willard Hotel meetings essential to fully understanding and establishing responsibility for the events of Jan. 6,” the contempt report states.
The subpoena deadline for Bannon came and went on Oct. 7, and he was a no-show before Congress for a deposition slated one week later. Bannon’s attorney, Robert Costello, asserted to committee chair Bennie Thompson, a Mississippi Democrat, that Bannon would not comply because Trump, he argued, has executive privilege over the men’s communications.
But glaringly, the committee has not received any privilege log from Bannon, something typical to these types of claims, nor has Trump himself offered to shield Bannon directly with a formal invocation of executive privilege over their specific communications.
Instead, as Praveen Fernandes, vice president of the Constitutional Accountability Center, noted in an interview Thursday, Trump has turned to a familiar tactic: He sued the committee and alleged their request was a gross overreach.
“Unfortunately, this seems to be of a piece with the tactics and strategies that former President Donald Trump has used, which is to say, ‘gumming up the works’ and using strategies to delay and run out the clock,” Fernandes said.
“The period here was when Mr. Bannon was not a White House employee, so the arguments that undergird court decisions where notions of executive privilege are expounded don’t apply. At the time in question, Mr. Bannon was not a White House employee, not a part of the administration, and hadn’t been for months,” he added.
Executive privilege may be necessary for discussion to flow more freely among a president and their official advisers, but as Representative Jim McGovern underlined from the House floor ahead of the contempt vote: “Executive privilege is not absolute.”
“There is a long history of the White House making accommodations to investigate requests to congress and it is especially true when the public interest outweighs other interests,” McGovern said. “But apparently, facts and law don’t matter to some.”
While the debate was unfolding on the House floor, Representative Zoe Lofgren of California, a member of the Jan. 6 Committee, deftly pressed Attorney General Merrick Garland about case law during an oversight hearing hosted by the House Judiciary Committee. Lofgren got Garland as close as she could to revealing openly his current positions on decades-old case law highly relevant to Bannon’s claims of executive privilege.
“Before you were attorney general, you were a judge. I note that in 2004, there was a case, Judicial Watch Inc. vs. Department of Justice, where the court ruled ‘presidential communications privilege applies only to documents solicited and received by the president and immediate White House advisors who have a broad and significant ability to investigate and formulate the advice to be given to the president,” Lofgren said. “Do you think that is still good law?”
Garland responded without hesitation: “Yes, I think the D.C. Circuit is a good source of law.”
Lofgren pressed further, noting that the Judicial Watch case also relied on the precedent established in the 1974 case, Richard Nixon v. Administrator of General Services.
“The case said communications to advise the president would apply only to official government matters. Is that still good law?”
Garland said he believes the Supreme Court’s opinion is still “good law until it is reversed.”
“And I see no sign it’s going to be reversed,” he continued.
And as for House Judiciary Committee’s case against former White House counsel Don McGahn in 2019, who Trump directed to rebuff a subpoena for congressional testimony, Lofgren emphasized that the courts established that “with respect to senior-level aides, absolute immunity to compelled congressional process simply doesn’t exist.”
“I believe the McGahn case is still good law,” Garland said.
“Recently, the Department of Justice informed a federal district court that ‘conspiring to prevent the lawful certification of the 2020 election and to injure members of Congress and inciting the riot at the capitol would plainly fall outside the scope of employment of an officer or employee of the United States. Since your department filed that, I assume you agree with that,” Lofgren said.
“Yes,” Garland replied.
He also told Lofgren, “The Department of Justice will do what it always does in such circumstances.”
Republican Representative Jim Banks of Indiana called the proceedings “absurd,” while GOP Representative Matt Gaetz of Florida railed against Democrats, saying members should “save me the alligator tears” over their concerns about an endangered democracy.
And for his part, GOP Leader Kevin McCarthy of California at a press conference Thursday attacked the Jan. 6 Committee while also telling reporters he does not know whether Bannon has executive privilege, but needled: “Neither does the committee.”
Praveen Fernandes on Thursday emphasized that while there’s been “a lot of focus on the executive branch,” people must come to terms with another fact.
“There are three branches of the government, and Congress has an essential function in our democratic system. In order for Congress to exercise its constitutional legislative function, it has an investigatory power, and Congress needs access to information so that it can make wise decisions in service of its constitutional legislative function,” he said. “Congress here is trying to get the information it is constitutionally entitled to so it can play its role in the process […] if there are things that Congress needs to do to prevent another Jan. 6 from happening, then Congress needs the best information on what happened that day and led up to it.
Now that Bannon has been held in contempt by the House, it goes next to House Speaker Nancy Pelosi, who will certify the vote in writing and then forward the referral to the U.S. Attorney’s office in Washington. The attorney’s office, under Garland’s purview, must decide if it will press charges.
If Bannon is ultimately convicted, he could face up to a year in jail and a fine of up to $100,000.
Representative Jim Clyburn, a South Carolina Democrat, ahead of Thursday’s vote issued a stark warning about the path ahead without accountability for Bannon.
“Willful circumventions” used by secessionists after the Civil War in their “lost cause” to hold onto the ideals and leaders of the traitor confederacy, he said, were akin to the GOP’s machinations today to give cover to Trump and his lies about the results of the 2020 election.
“We are at risk of repeating that history today. Just as the lost cause laid the ideological groundwork for Jim Crow and all of its inhumanities, the Big Lie seeks to justify nullification of laws that seek to oppress votes and establish autocratic rule,” Clyburn said. “The former president and his enablers are using the Big Lie to deny the horror of Jan. 6. They are attempting to obstruct and subvert the select committee’s work and to prevent a full accounting of our efforts to undermine our democracy.”
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