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Wright on Executive Privilege with Some Additional Thoughts Hazarded by Stern

Steve Bannon, the former chief strategist in the Trump White House, has refused to answer questions from the House Permanent Select Committee on Intelligence (HPSCI) regarding his time in the White House and on the presidential transition team. Bannon claims these subjects may implicate executive privilege and is deferring to the White House counsel’s office as to whether the privilege will be invoked.

I was going to post some comments on this issue, but almost everything I was going to say is admirably covered by Professor Andy Wright here. Wright’s key points are (1) Bannon’s status as a former government official is irrelevant to the legal merits of the privilege claim, though it could impact how the matter is resolved procedurally (more on that in a minute); (2) the privilege belongs to the president, not to the subordinate official; (3) it is thus appropriate to provide the president, with the advice of White House counsel and other executive branch lawyers, an opportunity to decide whether to invoke the privilege formally; (4) if negotiations do not resolve the issue, HPSCI must move forward with a formal contempt process; (5) while it may ultimately be decided that executive privilege does not attach to presidential transitions, the question at this point is an open one; and (6) even if the privilege does apply, HPSCI will still have strong arguments in favor of requiring Bannon to answer some or all of its questions.

One point of qualification. While I agree with Wright that issues of executive privilege have to be decided on a question-by-question basis, the burden is not on Bannon to make sure that specific questions get asked. In other words, if Bannon issued a “blanket refusal [to answer] about all swaths of time during his transition and White House roles,” as Wright indicates, it is still incumbent on HPSCI to make a record of the specific questions it wants answered. Failure to do so could undermine its legal position or delay resolution of the merits should the dispute reach the courts.

This brings us to the procedure HPSCI should employ to resolve this matter. As Wright notes, there are three avenues available (criminal contempt, civil litigation and inherent contempt). Each has its drawbacks and none is guaranteed to work (or work in a timely fashion) even if one assumes HPSCI would win the executive privilege issue on the merits.

As we discussed in connection with the Comey matter, however, the procedure followed with regard to a former official might differ from the norm. If Bannon takes the position that he will abide by HPSCI’s rulings on executive privilege unless otherwise directed by a federal court, the burden would be on the executive branch to bring a civil action and obtain a speedy order (presumably a TRO) directing Bannon not to testify.

On the other hand, Bannon might say that he will abide by the president’s instructions even if it means being held in contempt by HPSCI and the House. If so, the House could consider employing the rarest form of testimonial compulsion, inherent contempt. In this procedure, Bannon would be arrested by the Sergeant at Arms and brought before the bar of the House. If he continues to refuse to testify, the House could remand him into the custody of the Sergeant at Arms until he changes his mind (or convinces a court to release him on a habeas petition). This is a drastic remedy, which has not been employed by the House in about a century. But if the House is serious about reasserting its institutional prerogatives, there could hardly be a more inviting target than Mr. Bannon.

Anyway, there is something about incarcerating Bannon in the basement of the Capitol that seems like where 2018 is going, don’t you think?

P.S. RIP Geoffrey Hazard.

 

 

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