Steve 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.