Stephen Bannon, President Donald Trump’s former chief strategist and his campaign’s chief executive, refused to answer questions about his roles on the presidential transition team and in the White House during his day-long interview with the House Permanent Select Committee on Intelligence on Tuesday. As Bannon continued to stonewall, the committee, with bipartisan support, subpoenaed him on the spot, in an effort to compel him to answer questions. This prompted Bannon’s lawyer, Bill Burck, to call and consult the White House, which instructed Burck to tell his client to continue to refuse to answer any questions related to those roles on the grounds of executive privilege. It’s not clear who Burck spoke to at the White House, but he also represents White House Counsel Don McGahn and former White House Chief of Staff Reince Priebus in the various Russia investigations. He previously served as deputy White House counsel under President George W. Bush.

“Executive privilege belongs to the President of the United States. It’s not Mr. Bannon’s right to waive it,” Burck said in a statement to ABC News. Burck told Axios “The White House instructed Mr. Bannon not to talk about the transition and the White House until the President decides what information he will invoke executive privilege over and what information he will not. That had not happened as of yesterday or today.” Meanwhile, on Fox News, White House Chief of Staff John Kelly claimed “the White House did not tell [Bannon] to invoke executive privilege.”

For a committee that has been mired in partisan strife, its unified, bipartisan condemnation of these excessively aggressive claims of privilege is notable. Rep. Mike Conaway (R-Tex.), who is leading the House’s Russia investigation (thanks to the recusal of California Republican Rep. Devin Nunes), vowed: “We’re going to get answers from Mr. Bannon.” Meanwhile, the committee’s top Democrat, Rep. Adam Schiff (D-Calif.) complained the White House had essentially issued a “gag order” on Bannon.

Rep. Trey Gowdy (R-S.C.) also sounded off: “I am frustrated whenever people assert privileges that do not exist and I am really frustrated when witnesses have all the time in the world to talk to the media – on and off the record – and they can help people write books, but they can’t talk to the representatives who are elected by their fellow citizens.” Rep. Jim Himes (D-Conn.) described it as a “remarkably broad definition of executive privilege.” And, Rep. Mike Quigley quipped, “Only Steve Bannon could unite this committee.”

On Wednesday, Conaway and Schiff sent a letter to Burck insisting Bannon return to Capitol Hill on Thursday and comply with the subpoena, reported the Washington Post. In response, Burck reportedly told the committee that was not enough time to figure out with the White House where it might want to assert privilege.

While Bannon was less than forthcoming on Capitol Hill, we learned that last week, the grand jury convened by Special Counsel Robert Mueller issued a subpoena for formal testimony from the president’s former chief strategist and, until recently, the chairman of Breitbart News. However, rather than appear before the grand jury, Bannon reached a deal with Mueller, and has promised to voluntarily give fulsome testimony, including those topics he refused to answer when asked by Congress. As the Washington Post described the deal, “Bannon will be interviewed voluntarily and will cooperate fully, in a session that is likely to be held before the end of the month. As a result, he will not be immediately required to appear before a grand jury working with Mueller.” The White House also claims that it will not seek to prohibit Bannon from discussing the transition or White House in the Mueller investigation.

Based on my experience with executive privilege as a White House lawyer and congressional investigator, let me offer a few thoughts about these latest developments:

Bannon as a Former Government Official. Bannon’s status as a former official does not alter the legal strength or weakness of any privilege grounds flowing from his official conduct. It does alter the leverage the executive branch has in obtaining compliance with White House wishes. Put another way, while executive privilege may apply to former officials for testimony about their official conduct, they may feel less inclined to comply with a White House demand than current officials. Bannon appears to be complying with White House requests. There was a dustup when the White House made some noises about trying to control former Acting Attorney General Sally Yates’s congressional testimony. Former FBI Director James Comey was even less likely to accede to White House confidentiality demands.

Forcing Formal Assertion of Executive Privilege. Over the past year, I have written several times about various Trump administration officials who have refused to provide information about conversations with Trump. They’ve done so with various awkward verbal formulations that scrupulously avoid asserting executive privilege but do not offer an alternate legal theory for failure to answer. In June, Attorney General Jeff Sessions told the Senate Intelligence Committee, “I’m protecting the president’s constitutional right by not giving it away before he has a chance to view it and weigh it.” Those episodes caused varying degrees of consternation among members of Congress and outrage from many quarters on social media.

However, administration officials feel constrained by the president’s ownership of the privilege. They understand executive privilege is beyond their authority to assert. Therefore, executive branch officials, like Sessions, usually seek to resist providing information in which, per the Office of Legal Counsel and the White House Counsel, the executive branch has significant confidentiality interests. In that sense, subordinate officials often seek to preserve the president’s ability to assert executive privilege. This graph from Politico captures this phenomenon at play with Bannon:

Schiff and Conaway confirmed that Bannon and the White House didn’t specifically assert executive privilege to avoid answering questions, but rather suggested that some of the answers could potentially infringe upon executive privilege. Attorney General Jeff Sessions made a similar case when he declined to answer some questions he had received from lawmakers in various ongoing Russia probes.

It also may explain the apparent daylight between Kelly’s assertion that the White House did not order Bannon to invoke executive privilege and Burck’s report that the White House directed Bannon not to discuss transition and White House matters.

But Congress can push back. The way to advance congressional oversight interests beyond publicly (or privately) berating witnesses is for Congress to use its subpoena power backed up by contempt power if a witness does not comply.

There is an important accommodation process between the branches of government where the congressional need for information collides with legitimate executive branch confidentiality interests. Each side has tools designed to demonstrate its political will and escalate its legal position. Until this week, Congress had not issued a subpoena in the face of informal resistance from a witness (grounded in executive privilege doctrine) to congressional questions. With Bannon, however, the House Intelligence Committee subpoenaed him on the spot, which escalated the conflict and forced the White House to start defending its legal position. Now, if Bannon fails to produce the requested information to the committee’s satisfaction, the committee should schedule a contempt vote. At that point, I would expect the White House would go through the formal process of seeking the president’s assertion of executive privilege, or it would relent in some meaningful way. The takeaway here is that Congress has to press its case through legal compulsion. A media strategy may be part of the overall pressure Congress brings to bear, but public expressions of outrage are not a substitute for necessary legal steps.

Contempt: Congress’s Subpoena Enforcer. As I outline in a law review article Constitutional Conflict and Congressional Oversight, Congress has three types of contempt power: criminal contempt, civil contempt, and inherent contempt.

Criminal contempt consists of a statutorily authorized referral of a person held in contempt of Congress to the U.S. Attorney for the District of Columbia for prosecution. Congress takes the position that the U.S. Attorney then has a mandatory obligation to present Congress’s referral to a grand jury. However, the executive branch rejects that view when the contemptuous party is an administration official following an executive branch policy solemnized the presidential privilege assertion. Therefore, for legal and practical reasons, the criminal contempt model only works against private parties or state-level officials. It does not work in separation of powers disputes. However, if Mueller’s mandate included congressional contempt related to the Russia investigation, the calculus might be different. But if I were in Congress, I would not hold my breath for criminal contempt enforcement.

Civil contempt consists of a civil lawsuit for judicial enforcement of Congress’s subpoena. That was the path taken by Democrats in the controversy over President George W. Bush’s removal of U.S. attorneys (House Judiciary Committee v. Miers), as well as by Republicans in the investigation of problems associated with anti-gun trafficking efforts labeled “Operation Fast and Furious” (House Oversight Committee v. Holder/Lynch/Sessions). Congress has obtained some favorable rulings in those cases. But Congress has also lost on some of its prized legal arguments. As the party seeking to alter the status quo, Congress also suffers from the slow pace of federal litigation.

Inherent contempt consists of congressional detention of a contemptuous witness, essentially holding the person in a congressional jail. It is the purest form of congressional self-help, but it is also the most provocative and disfavored. Congress has not invoked its inherent contempt power in nearly one hundred years. For reasons of comity and practicality, Congress does not seek to detain executive branch officials asserting an executive branch legal position.

Executive Privilege and the Presidential Transition. Bannon refused to answer questions about the presidential transition on a theory of executive privilege. While that is a largely untested and aggressive argument, it is not as far-fetched as it might sound. A presidential transition could share some deliberative, communication, or national security interests in common with an incumbent president. Per Wright (no relation) and Miller: “It is a reasonable inference from the cases and the policy of the executive privilege that it only applies to communications to the president during his term of office, though there is something to be said for extending the privilege to communications to a president-elect during the transition between administrations.” (Wright and Miller 26A Fed. Prac. & Proc. Evid. § 5673) (footnotes omitted). More recently, a federal district court rejected Kansas Secretary of State Kris Kobach’s objection to production of information about a conversation with president-elect Trump on a legal theory grounded in executive privilege. The court there held:

Defendant’s argument for withholding the photographed document under the executive privilege is unpersuasive. First, Secretary Kobach’s communication was made to a president-elect, not to a sitting president. Although a president-elect by statute and policy may be accorded security briefings and other transitional prerogatives, he or she has no constitutional power to make any decisions on behalf of the Executive Branch. No court has recognized the applicability of the executive privilege to communications made before a president takes office. If that were the law, it would mean that potentially almost everything communicated to a president-elect by the hundreds of persons seeking appointments in the new administration would be shielded by privilege.

As such, Bannon’s refusal to testify about presidential transition matters looks quite weak.

Waiver of the Privilege. To the extent Congress can establish that Bannon has already disclosed information about potentially privileged conversations within the White House to book authors and journalists, the privilege has been waived as to the information disclosed. As Gowdy said this week, it really angers members of Congress to be stonewalled about the same conversations they see quoted by major media publications. The Trump White House has so many leaks that it has probably fatally compromised any legal firewall. Many in this White House, including the president, may not want a congressional committee seeking to establish waiver by investigating media sources.

Executive Privilege: Subject Categories Versus Specific Questions. One thing that is crystal clear coming out of the Miers and Holder/Lynch judicial opinions is that courts expect the president to assert executive privilege on a document-by-document, question-by-question basis, rather than broad categories of information. Therefore, Bannon’s blanket refusal about all swaths of time during his transition and White House roles is not legally defensible. Burck asserts it was merely a placeholder objection until the White House works out the scope of Bannon’s testimony. That may be true, but Congress clearly felt blindsided. If the White House had objections, why didn’t White House lawyers engage with the committee as to scope once it learned that Bannon had an interview date scheduled?

Acute Congressional Need for Russia Information. Finally, all of the executive privilege cases: U.S. v. Nixon, Senate Select Committee v. Nixon, Miers, Holder/Lynch all balance congressional or grand jury investigative needs against the president’s confidentiality interests. Congress’s investigative need today is great. Russia undertook active measures to subvert U.S. democratic elections and the president is suspected of obstructing the resulting criminal and counterintelligence investigations. Congress needs information in order to formulate policy and provide resources to protect our electoral integrity. Congress also has a legitimate interest in executive branch maladministration and abuse. I do not see executive branch confidentiality interests outweighing Congress’s on these facts and in this political environment.

Over the coming weeks, we will see whether Congress presses its case and, if so, whether President Trump is willing to personally assert executive privilege.


Image: Mark Wilson/Getty