Bannon Refuses To Answer Questions Before Congress — Faces Subpoenas and Potential Contempt Sanctions [UPDATED]

Screen_Shot_2016-08-18_at_9.57.02_AMSteve Bannon is now under subpoena by both House investigators and the Special Counsel after he refused to answer questions before Congress. Following a problematic pattern of current and former Administration figures, Bannon reportedly did not invoke executive privilege (which must be asserted by the White House) but refused to answer questions about his work on the transition team and White House.  There is no basis for such a broad assertion of executive privilege and, unless Bannon changes course, he could be looking at contempt sanctions down the road.  Despite his refusal to cooperate with the committee, he has reached a deal to speak with the Special Counsel investigators outside of a grand jury.

Update: The White House is now asserting that there were prior discussions with the Committee and the Committee violated the agreement on scope.  Notably however the agreement was to discuss only matters from the campaign and not the transition or White House periods. That would be an astonishingly limited scope for the Committee staff to agree to given the material events after the campaign, including the time periods covered by statements made by Bannon in the Wolff book.

Reports indicate that the appearance of Bannon before House Intelligence Committee became heated and chaotic as Bannon refused to speak about his transition or White House service.  This could be a play by his counsel for some form of immunity or a deal narrowing the questions.  However, reports indicate that the White House may have gagged Bannon.

The use of executive privilege over conversations with a president-elect is very hard to maintain.  Trump was not the chief executive until he took the oath of office.

Whatever the cause, it is a dangerous game for both Bannon and the White House.  There is no direct case support for an assertion over transition work being privileged. Moreover, he will have to cooperate with Mueller on such questions.  Reports indicate that Mueller’s people unsuccessfully tried to serve Bannon with a subpoena but learned that he had retained counsel (and proceeded to serve his counsel).


According to news reports, Bannon told lawmakers he was willing to answer questions about his time in the White House but the Trump administration had instructed him not to answer such questions.  Moreover, his attorney William Burck reportedly conferred with White House officials and the White House maintained the position that he should not answer questions.

The White House would lose such a fight and cannot bar all such questions.  It would also create the worst possible optics as the President is seen as barring the investigation into these allegations.  This is why such questions have historically been addressed in advance to avoid such messy confrontations.  With both houses in the control of the GOP, the White House counsel should have been able work out a reasonable scope of questions.  Instead, we are once again at an unnecessary impasse.

The White House indicated that the failure was with the committee staff.  Sarah Huckabee Sanders said “As with all congressional inquiries touching upon the White House, Congress must consult with the White House prior to obtaining confidential material.”  Once again, with GOP control of the committee, it is a mystery why the staff would not have consulted with the White House in advance.

What is particularly curious is that Burck reportedly told the Committee that Bannon would refuse to answer the questions of the Committee but would answer the same questions by Mueller — on the basis for executive privilege. Putting aside the dubious scope of privilege assertion, it is not clear why (since the information will be disclosed to Mueller) the White House did not take the high road and just waive any privilege assertions. In that way, the testimony is not binding precedent while the White House conveys a position of total transparency.


96 thoughts on “Bannon Refuses To Answer Questions Before Congress — Faces Subpoenas and Potential Contempt Sanctions [UPDATED]”

  1. I’m not a lawyer. But Turley is. If Trump wants to assert executive privilege to prevent his current senior advisor’s testimony, then I presume that precedent allows that. But if Trump wants to assert executive privilege to prevent his former senior advisor’s testimony, then I need a lawyer to explain to me why precedent allows that.

    1. Here’s an excerpt from The Constitution Centerthat is relevant to current advisors to The POTUS:

      “Eisenhower was the first President to coin the term ‘executive privilege’. During Senator Joseph McCarthy’s crusade against communism, the President prevented Cabinet members and other advisors from being questioned in the famous McCarthy-Army hearings. He said, ‘Any man who testifies as to the advice he gave me won’t be working for me that night.’ This was designed to protect sensitive documents from coming into public view, especially the view of Senator Joseph McCarthy, and to continue the tradition of allowing advisors to speak freely without the threat of a subpoena.”

      So Eisenhower regarded violations of executive privilege as a cause for immediate termination of his advisor’s employment. But it doesn’t tell us anything about former advisors protecting The POTUS by refusing to “testify as to the advice he or she had given The POTUS.”

      1. Since Trump fired Bannon, then Bannon no longer has a need to speak freely while advising Trump without the threat of a subpoena. Trump’s current senior advisor has that need to speak freely while advising Trump without the threat of subpoena. If Bannon’s testimony can be compelled because Trump fired him, then perhaps Trump’s executive power freely to fire his current advisors might be thereby infringed upon. But I don’t see any “chilling effect” on the actual advice that Trump’s current advisors might give The POTUS. I only see a reticence on the part of The POTUS to fire his current advisors if their testimony could be compelled after they were fired. But then I’m still not a lawyer.

        1. Tongue in cheek- Trump might be reticent about firings because he has to dip deeper and deeper into the pool to get anyone to work for him.

          1. Linda, I see nothing particularly facetious about your observation. Many of Trump’s “hires” appear to have been scraped up from off the bottom of the barrel. I know that because, you, Linda keep us all regularly posted on the seemingly infinite regress of Trump’s hiring malfunctions.

            P. S. The best tongue-in-cheek remains The Horse’s Mouth, himself, “I know the best people.”

      2. Interesting that you mentioned Sen. McCarthy.
        Paranoia about Russians is nothing new, and it’s interesting to look at the 2017
        version of “The Russians are Coming”
        and it’s similarities in mindset and tactics to extremists in the McCarthy era.
        A few of those who post here would have fit right in as McCarthy
        loyal and devoted assistants.
        You don’t even have to change the wording that much, and a quick scan of recent comment sections here
        will provide numerous examples of the stock phrases repeatedly used by those who would have felt very comfortable sitting next to McCarthy, unencumbered by any restraint against making wild accusations.
        Just the same act with a different set of players in a different time period.

    1. Fascinating, Dr. Benson. I take it that this also means that we’re all still on the hook for jury duty as well. Besides, there’s that thing in the Constitution about ” . . . a jury of one’s peers.” OMG. Am I a recidivist, too?

      1. Diane – if I can hold out for one more year I am off jury duty and taking my shoes off in the airport.

        1. Paul–what are you planning on hiding in your Skechers once you’re seventy-five? A mashed potato slingshot?

  2. Bannon and Hillary sittin in a tree…
    K I S S I N G.
    First came loot, then came Donny..
    Here comes Hillary with a baby carriage.

  3. “The WH asserted”, in other words there’s a high probability Trump crafted another lie.

  4. Is Steve Bannon the dorky guy on the right in the photo? There was a guy who looked just like him when I was in Limbo. I was headed back to the Earth and he was headed to Hell. This was 70 years ago.

  5. According to Axios sources “Steve Bannon made one conspicuous slip up in his closed-door hearing on Tuesday with the House Intelligence Committee, according to four sources with direct knowledge of the confidential proceedings. Bannon admitted that he’d had conversations with Reince Priebus, Sean Spicer and legal spokesman Mark Corallo about Don Junior’s infamous meeting with the Russians in Trump Tower in June 2016.”

    “Inside the room: What Steve Bannon told Congress yesterday”

  6. More info which further confuses the issue, just like everything else going on:

    “Gowdy, one of the Republicans leading the committee’s investigation, told Fox News Bannon’s excuse was “…the most tortured analysis of executive privilege I have ever heard of,” Gowdy said on Fox News.

    “Executive privilege now covers things before you become the chief executive — which is just mind-numbing and there is no legal support for it.”

    Democrats were also frustrated by Bannon’s refusal, with Adam Schiff saying it was tantamount to a gag order.”

    “This was effectively a gag order by the White House preventing this witness from answering almost any question concerning his time in the transition or the administration and many questions even after he left the administration,” Schiff said.

Comments are closed.