Trump and Bannon fight Jan. 6 investigation

Steve Bannon, a former adviser to President Donald Trump, made headlines last week when he was held in criminal contempt of Congress. The contempt charge came after Bannon refused to comply with a subpoena from a House committee investigating the Jan. 6 Capitol riot.

On a Jan. 5 podcast episode, according to subpoena documents, Bannon encouraged listeners to attend “Stop the Steal” protests across the country and said, “All hell is going to break loose tomorrow.” The House committee said his testimony is essential due to evidence that he spoke with Trump shortly before violent protests erupted in the nation’s capital.

But Bannon claims he cannot legally comply with the subpoena until legal questions are resolved regarding executive privilege—the ability of presidents to withhold certain documents and information from the other branches of government.

Bannon’s case highlights a presidential showdown over thousands of pages stored in the National Archives. The committee has requested documents about the planning and organizing of the Save America rally and other events in Washington on Jan. 5 and 6, along with anything involving attempts to overturn the election results. Trump’s legal team is fighting the request in court, arguing the documents should be kept secret. The case raises legal questions over the power of a former president to withhold information.

Under the Presidential Records Act, when a president leaves office, his documents are immediately submitted to the National Archives. But they are not available for public view for another five years. The Jan. 6 select committee wants to sidestep this. President Joe Biden has refused to invoke executive privilege, which would block the committee from accessing the documents.

On Oct. 18, Trump sued the House select committee and the National Archives. His lawsuit rests on three main arguments: First, the documents might contain classified national security information; second, he still has a constitutional right to executive privilege; and third, the National Archives and both presidents need more time to review the documents. The suit asks for an injunction on the document request while the case is pending.

The committee maintains that the benefits of its investigation outweigh the concerns about executive privilege. Chairman Bennie Thompson, D-Miss., and vice chair Liz Cheney, R-Wyo., promised they would challenge Trump’s suit. “It’s hard to imagine a more compelling public interest than trying to get answers about an attack on our democracy and an attempt to overturn the results of an election,” they said in a joint statement.

Presidents have a complicated history with executive privilege. President Richard Nixon famously invoked executive privilege to keep documents secret during the Watergate investigation. Since then, leaders have struggled to fight the perception that using executive privilege indicates they are hiding something. Presidents Bill Clinton and Barack Obama both cited executive privilege over investigations during their presidencies. (In both instances, courts refused their requests, citing the Nixon precedent.)

Trump’s complaint argues that, under current court precedents, the committee’s request does not meet the standards needed to overrule a sitting president’s right to privacy for personal records. But critics say those standards should not apply because Trump is no longer the sitting president and the documents in question are not personal. In a Washington Post op-ed last week, former California appellate lawyer Teri Kanefield said Trump’s involvement in the Jan. 6 rally was a political activity not covered by executive privilege in the first place. “Ultimately, the court will have plenty of grounds to make short work of this absurd lawsuit,” she wrote.

Trump’s advantage, though, is that the litigation will likely take time to play out, perhaps extending past the 2022 elections.

“It seems quite likely that the committee is correct that, as a legal matter, it is entitled to most of the information and testimony it seeks,” wrote Jonathan Shaub, assistant professor of law at the University of Kentucky and a former Obama administration adviser, on the Lawfare website. “But, as a practical matter, the committee may never receive it.”

Settling the executive privilege question will take time, but meanwhile, Bannon still faces his own potential court battle. In his case, the courts would need to decide whether he as an outside adviser and private citizen can claim executive privilege as a reason to refuse testimony.

If the Justice Department chooses to prosecute Bannon for contempt of court, a trial could take years. If convicted, he faces hefty fines and up to a year in prison.