Steve Bannon’s authorized staff has outdone itself with a totally batshit submitting in his contempt of congress case. A lot of the surreply to the federal government’s final transient is devoted to performative indignation over the suggestion that govt privilege shouldn’t be a lifetime profit masking not simply the holder’s govt service, however every part he does for all eternity.
“On web page two, the Authorities makes an irrelevant level that: ‘the Defendant was a non-public citizen; though he had been a White Home advisor for seven months at the start of former President Donald J. Trump’s time period,’” they snark, chiding prosecutors for daring to level out that Bannon was not a member of the chief department and on the time of the occasions in query, and the January 6 Choose Committee was not asking him about something pertaining to his authorities service.
However the submitting additionally comprises a declare that Bannon’s conversations together with his legal professional within the presence of former nationwide safety advisor and present MAGA grifter Mike Flynn “could be protected by attorney-client and work product privileges, despite the fact that it included Common Flynn who was at the moment working for Sidney Powell, Esq., one of many legal professionals working for President Trump at the moment.” Which is each weird and fairly clearly unfaithful.
Go away apart for the second the suggestion that Flynn was someway employed by Powell, versus merely a fellow traveler trying to experience the Kraken on an ocean of Large Lies. About ten seconds after that bonkers press convention the place Rudy Giuliani leaked hair dye all around the lectern on the RNC and Powell babbled nonsense about Venezuela stealing the election for Biden, all of the Trump minions took one big step again from Powell.
“Sidney Powell is working towards regulation on her personal,” Giuliani and Trump marketing campaign lawyer Jenna Ellis mentioned on November 22, 2020. “She shouldn’t be a member of the Trump Authorized Staff. She can also be not a lawyer for the President in his private capability.”
So until this dialog between Bannon and Flynn came about within the three days between that disastrous presser and Sidney’s unceremonious defenestration, she was unambiguously not Trump’s lawyer.
The surreply additionally provides us a peek at Bannon’s technique going ahead and explains why he’s so scorching to get his palms on any Workplace of Authorized Counsel memos. Their concept is that there are “a number of opinions of the Workplace of Authorized Counsel (‘OLC’) which acknowledged that when govt privilege was at stake, if the Congressional Committee had a rule which prohibited counsel for the President from being current to guard the privilege, the subpoena was illegal, unlawful and unconstitutional and subsequently incapable of being enforced both civilly or criminally.”
In fact, this rests on the speculation that there was a sound privilege to be asserted over Bannon’s conversations three years after Trump fired him from the White Home. However the Committee does have a rule barring counsel for third events attending depositions, so, based on Bannon’s legal professionals, “The online results of these opinions was that the Bannon subpoena was null and void, and Bannon was suggested that he didn’t must attend the deposition or produce paperwork as a result of the subpoena was void.”
In actual fact, they go as far as to insist that Bannon by no means needed to negotiate with the Committee in any respect as a result of “Costello was below no obligation to divulge to Workers Counsel that Mr. Bannon had an entire protection to the subpoena’s calls for based mostly upon the OLC opinions.”
It’s a daring technique, Cotton, and one which rests on the very skinny reed of the previous president’s precise invocation of privilege over Bannon’s communications with the Trump marketing campaign in late 2020 and early 2021. And that argument was so patently ridiculous that even Trump’s legal professionals by no means tried it.
On October 6, Trump marketing campaign lawyer Justin Clark wrote to Costello urging Bannon 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.”
Clearly this was not a blanket invocation of privilege, and when Clark realized that Costello was treating this as a permission slip to blow off the Committee fully, he fired off one other letter on October 13 clarifying his place.
“Simply to reiterate, our letter referenced under [the October 6 letter] didn’t point out that we consider there may be immunity from testimony on your shopper,” he wrote. “As I indicated to you the opposite day, we don’t consider there may be. Now, you’ll have made a unique dedication. That’s fully your name.”
So, to be clear, Bannon’s case rests on an oral invocation of govt privilege; heard solely by his lawyer and denied by the counsel for the previous president; masking a time when Bannon was not a part of the chief department; based mostly on a non-binding OLC memo which in all probability refers to a lawyer from the chief department being current, not non-public counsel; and in help of an recommendation of counsel protection which is barred by precedent.
Cool. Keep it up, fellas.
US v. Bannon [Docket via Court Listener]
Liz Dye lives in Baltimore the place she writes about regulation and politics.