Opinion | Steve Bannon’s Contempt Indictment Isn’t All that Trump Foes Think It Is

Different Trump administration officers—comparable to former chief of workers Mark Meadows, who defied an order to seem for a deposition on Friday—have taken a extra refined strategy that would make a prosecution rather more troublesome. So whereas the Bannon indictment definitely sends a message to anybody who would possibly defy a congressional subpoena—like “coup memo” creator John Eastman or former DOJ official Jeffrey Clark—don’t count on extra prosecutions to comply with. Good attorneys may also help Meadows and others keep away from Bannon’s destiny.

In contrast to Meadows and former Trump official Kash Patel, Bannon didn’t try to barter with the committee to slender the scope of the subpoena. The truth is, Bannon’s legal professional didn’t talk with the committee till over seven hours after Bannon was purported to testify, because the Home famous in its criminal referral.

In that letter, Bannon’s legal professional didn’t increase any believable privilege declare or establish classes of paperwork—or topics of testimony—that might doubtlessly be privileged. As an alternative, he claimed that Bannon can be “unable to reply” to the subpoena in any respect as a result of former President Donald Trump wrote a letter to Bannon claiming govt privilege. (Bannon final served within the White Home in 2017.)

That’s not how any sort of authorized privilege works. It have to be asserted with respect to particular statements, paperwork or testimony. It just isn’t a blanket idea that shields folks from saying something about any topic. What Bannon stated on his podcast in early January, data of which have been subpoenaed by the committee, just isn’t topic to govt privilege.

A savvy response to the subpoena would have recognized believable topics of testimony, or classes of paperwork, that might arguably be topic to govt privilege. In contrast to Meadows, who was an govt department worker on the time, any assertion of govt privilege by Bannon is suspect. However, at instances, the Justice Department has suggested that govt privilege might apply to conversations between White Home officers and people exterior the manager department. Bannon and his staff didn’t even attempt to make that argument.

Rep. Bennie Thompson (D-Miss.), the Jan. 6 committee’s chair, responded to Bannon’s legal professional, demanding a privilege log detailing any paperwork being withheld based mostly on particular privilege claims and stating that they anticipated Bannon to seem in particular person to say privilege relating to testimony, threatening a legal referral if he didn’t comply. In response, as soon as once more, Bannon’s legal professional adopted an strategy of obscure and categorical refusal.

After Bannon failed to seem for a second time, Thompson wrote one other letter making clear that the committee would take into account initiating contempt of Congress procedures and requested him to lift “any further points” relating to Bannon’s refusal to adjust to the subpoena. Bannon and his staff didn’t reply in any respect. No negotiation, arguments relating to privilege, or dialogue of particular paperwork or testimony. Given this extraordinarily inadequate response to the subpoena, it’s no surprise that Bannon was indicted.

However regardless of his personal finest efforts, the prosecution of Bannon is not going to be straightforward. (The final particular person really convicted of contempt was Richard Helms in 1977.) For instance, Bannon can assert an “recommendation of counsel” protection, waiving privilege and calling his lawyer Robert Costello to testify that he gave Bannon recommendation that Bannon relied on in good religion to not adjust to the subpoena.

However Bannon’s missteps so far have been so quite a few, it might not be shocking if he’s in the end convicted. However that doesn’t imply that different Trump aides will face indictment, a lot much less conviction. Meadows, who now faces potential contempt proceedings, employed a outstanding lawyer who engaged in intensive negotiations with the committee over the scope of his testimony earlier than he lastly refused to testify in latest days.

In contrast to Bannon, Meadows was employed by the manager department on Jan. 6, and as chief of workers, he was the kind of shut adviser that govt privilege is often understood to use to. It’s a lot simpler for him to make believable claims of privilege than it might have been for Bannon to take action. Whereas his latest choice to not testify in any respect carries some dangers, he has not dominated out testifying ultimately.

Meadows’ newest response to the committee is that “the courts will have to resolve” the battle between Trump’s directions to him and the committee’s subpoena. He has not dominated out producing paperwork to the committee, and his legal professional claims his legislation agency is trying to find data in response to the subpoena. Whereas Meadows has refused to adjust to the subpoena, the report this creates is messier and can be harder for the Justice Division to pursue in a legal indictment.

That doesn’t imply we gained’t hear from Meadows ultimately. A federal decide just lately discovered that Trump’s lawsuit to cease the manufacturing of data created throughout his administration was with out benefit, and the D.C. Circuit Court docket of Appeals will take into account the difficulty quickly. It’s potential that courts might in the end resolve this problem and depart Meadows able the place he should testify about sure issues, even when a few of his communications with Trump have been topic to govt privilege.

However as Home Democrats have discovered the laborious approach, it could possibly take time for circumstances to wind their approach by means of the authorized system. Don McGahn was subpoenaed by the Home Judiciary Committee in April 2019 and didn’t testify till over two years later. With a mid-term election lower than one yr away, time just isn’t on their aspect, they usually can’t depend on the remainder of their witnesses to be as unsophisticated and silly as Bannon.

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