Donald Trump didn’t invoke government privilege with regard to Steve Bannon’s testimony to the January 6 Choose Committee.
It appears necessary to start each put up about Bannon’s contempt of Congress case with that caveat, in addition to this letter Trump’s lawyer Justin Clark wrote to Bannon’s lawyer Robert Costello on October 16, 2021:
Simply to reiterate, our letter referenced beneath [the October 6 letter] didn’t point out that we imagine there’s immunity from testimony in your consumer. As I indicated to you the opposite day, we don’t imagine there’s.
Bannon’s complete protection is based on the lie that Trump made a blanket invocation of privilege to dam his former adviser’s testimony and manufacturing of paperwork to the Committee. Certainly, Costello took two conferences with the DOJ the place he said it as truth. However the actuality is that Clark solely indicated that Bannon ought to “the place acceptable, invoke any immunities and privileges he might have from compelled testimony in response to the subpoena” and “not produce any paperwork regarding privileged materials.” And people two issues are not the identical.
With that out of the best way, let’s flip to the newest spherical of motions within the DOJ’s case towards the putrefying podcaster.
On Friday, Bannon filed a movement to dismiss the federal government’s case on the bottom that blowing off the Committee could be very cool and really authorized — i.e. a public authority protection — as a result of some weirdo on a golf cart in Florida mentioned he must. (He didn’t.) And in addition as a result of the Workplace of Authorized Counsel says government department workers gained’t be prosecuted for refusing to testify if there’s been a legitimate invocation of privilege (there wasn’t), and thus it’s entrapment and a violation of due course of to cost Bannon for blowing off a congressional subpoena.
For those who assume it about it — after consuming like three weed gummies — it makes full sense.
Bannon makes the identical silly arguments that each different January 6 litigant has made: that the Committee has no reliable legislative goal; that it’s illegally constituted as a result of it lacks a Republican member appointed by Minority Chief Kevin McCarthy; that it lacks authority to problem subpoenas; that forcing him to supply a privilege log is itself an abrogation of privilege, and many others. The DC Circuit already rejected these arguments in a holding which the Supreme Courtroom declined to overrule when it got here to Trump’s presidential information within the custody of the Nationwide Archives. And US District Choose David O. Carter unceremoniously garroted them in John “Coup Memo” Eastman’s California case.
What’s extra attention-grabbing is Bannon’s insistence that OLC memos “replicate the OLC’s legally binding, authoritative place on issues instantly associated to its personal company” and he had a proper to depend on them. Or it could be attention-grabbing to search out out if the federal courts are going to construe OLC opinions as such, however Bannon’s case is a horrible car for that, for the reason that opinions he cites pertain to present and former federal workers being questioned about their authorities service (which he wasn’t) in circumstances the place there was a reliable invocation of privilege (once more, no).
Bannon’s attorneys seem to concede that Costello’s interpretation of the OLC memos, to not point out Clark’s supposed invocation of government privilege, might need been considerably large of the mark. However they insist that is of no second since “Mr. Bannon’s reliance needn’t be right, nor want the OLC opinion be an accurate assertion of the regulation for entrapment by estoppel or obvious authority functions.”
As the federal government factors out in its movement to exclude the OLC memoranda and different inner DOJ paperwork, that is functionally a backdoor means to claim recommendation of counsel as a protection to contempt of Congress, which the courtroom has already rejected.
On condition that not one of the opinions or writings tackle the Defendant’s particular conduct, that each the present White Home Counsel’s Workplace and the previous President’s counsel knowledgeable the Defendant he was not being directed to utterly disregard Congress’s demand for testimony and paperwork, and that the opinions and writings cabin their conclusions to the precise circumstances of the circumstances they tackle, at finest the Defendant was on discover that additional inquiry was required earlier than he might conclude the federal government considered his default as falling outdoors the bounds of Part 192.
What’s extra attention-grabbing, or no less than amusing, is Bannon’s try to get Costello’s discussions with the DOJ tossed out.
Costello approached the DOJ in late October and requested a gathering to steer the Division to not cost his consumer with contempt of Congress. He had two teleconferences with the company at which he made the doubtful claims about Trump’s invocation of government privilege, and he subsequently turned over the very paperwork which disproved it.
For causes that aren’t totally clear, and unbeknownst to Costello, the DOJ acquired a subpoena for the lawyer’s metadata proper across the time he requested the assembly. Prosecutors declare that they wanted to show that Costello really gave discover of the Committee subpoena to Bannon, which does appear a bit doubtful. However regardless, metadata is just not typically thought-about inside the ambit of attorney-client privilege.
Costello, who nonetheless represents Bannon on this case, would now prefer to exclude these interviews and the paperwork he himself handed over to prosecutors on the idea that “if he had been made conscious that he was considered as a witness towards Mr. Bannon, not Mr. Bannon’s advocate,” he would have behaved in a different way.
This theoretically transforms a teleconference with three DOJ attorneys, 4 FBI brokers, a paralegal, and Costello’s personal affiliate on the road right into a “surreptitious interview” which have to be suppressed. And whereas the courtroom’s at it, Costello would really like the federal government to return “greater than 100 pages of paperwork – together with lawyer work product produced in the course of the illustration of Mr. Bannon.”
Apparently Costello, who labored at SDNY earlier in his profession, is below the impression that regulation enforcement is obliged to shoot straight and lay all their playing cards on the desk. And in case you ask an spy if he’s a cop, he has to confess it. Most likely.
Shine on you loopy, loopy diamonds.
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore the place she writes about regulation and politics.