Steve Bannon and other former Trump administration officials are facing legal consequences for refusing to comply with subpoenas issued by the House select committee investigating the Capitol attack, as the panel prepares to pursue criminal referrals for noncompliance.
Bannon is expected to face legal trouble after it was revealed in a letter to his attorney that he had claimed executive privilege protections on materials unrelated to the executive branch.
Bennie Thompson, the chairman of the House Select Committee, also stated in the letter that even if the panel accepted Bannon’s claims of executive privilege, he had no reason to disregard the order because no one, not even the president, could grant him immunity from a House subpoena.
The letter’s dual legal arguments, which served as Bannon’s final warning to cooperate a day before the select committee is expected to hold him in contempt of Congress, highlight the weakness of Donald Trump’s executive privilege claim.
Newspapers reported that the former president would instruct his top four aides who had been subpoenaed by the select committee – White House chief of staff Mark Meadows, his deputy Dan Scavino, defense department aide Kash Patel, and former chief strategist Steve Bannon – to defy the orders. Despite the fact that Bannon is the only one defying a subpoena after Meadows and Patel were “engaging” with the panel about the potential scope of their cooperation and Scavino was served late, the letter demonstrates that similar attempts to invoke executive privilege appear treacherous.
The letter came in response to a previous letter from Bannon’s attorney, Robert Costello, who insisted his client was barred from complying with the subpoena until Trump’s claims of executive privilege were settled in court.
In his response, Thompson stated that he rejected the entire Trump-centric argument and considered Bannon to have violated federal law after he “willfully failed to both produce a single document and to appear for his scheduled deposition.”
The chairman of the select committee stated that executive privilege could not be invoked in Bannon’s case because the panel was interested in his contacts with members of Congress and the Trump campaign, which are not covered by presidential protection.
Thompson went on to say that even if the select committee agreed that some of the materials requested by the panel were protected by executive privilege, Bannon would not be exempt from complying with a congressional subpoena.
The chairman also stated that the select committee believed Costello’s interpretation of a previous case involving the testimony of a Trump administration official – former White House counsel Don McGahn – actually undermined Bannon’s argument for refusing to testify.
According to Thompson, in the McGahn case, the US District Court for the District of Columbia ruled that even senior White House aides did not have absolute immunity from testifying. McGahn eventually testified before Congress in July as a result of that ruling.
Furthermore, Thompson stated that Costello’s citation referring to McGahn “makes clear that a president lacks legal authority to order an aide not to appear before Congress based on a claim of executive privilege.”
The letter’s legal rebuttals were tailored to Bannon’s noncompliance. However, a source close to the select committee said the same arguments would be made against Meadows, Scavino, and Patel if they attempted to claim executive privilege. And, with no change of heart from Bannon before the 6 p.m. ET deadline on Monday, the select committee is now expected to vote to recommend that the House refer him to the US Attorney for the District of Columbia for criminal prosecution.
The select committee’s move to secure Bannon’s conviction – which carries a maximum penalty of one year in federal prison and up to $100,000 in fines – came as Trump filed a lawsuit to prevent the release of his White House records.
After Joe Biden’s White House counsel, Dana Remus, declined to assert executive privilege protections, Trump filed a lawsuit in DC district court to prevent the National Archives from releasing records to the select committee.
Trump’s legal counsel has indicated that the former president is attempting to shield approximately 50 documents from public scrutiny.