Steve Bannon appeared this week before the House Intelligence Committee but refused to answer numerous questions, claiming executive privilege. Can he do that? The lawyer’s answer is no. This administration will find no more refuge in claims of executive privilege than the Nixon administration did in the summer of 1974.
Last summer, I wrote in this space about Atty. Gen. Jeff Sessions’ executive privilege claims during his congressional testimony regarding the president’s firing of FBI Director James B. Comey. Sessions made a classic criminal-defendant mistake when he testified at length about some conversations with the president, but selectively claimed executive privilege to refuse to answer questions about other conversations. None of the congressional committees have gone to court to compel testimony, but if a judge were to rule on Sessions’s claims, Sessions would lose. His self-serving selective disclosures waived the privilege.
Sessions even admitted that he didn’t have the authority to claim executive privilege in the first place. If the president asserted it, Sessions would be bound by that assertion. But the president never asserted it.
Bannon is now sitting in the same chair, making the same mistakes. He probably waived any privilege claim he had by regaling “Fire and Fury” author Michael Wolff, and through him the nation, with “significant portions of confidential communications” — precisely the communications he now refuses to testify about. That won’t fly. “Public, extrajudicial disclosures constitute a waiver of the privilege for the communications or portions of communications disclosed,” the case law says.
Can a president claim a generalized right to shield all his communications from Congress and the courts, just because he’s the president?
But Bannon can’t assert executive privilege to begin with, because — as mentioned — it’s not his to assert. The president could assert executive privilege and formally seek to prevent Bannon and other aides from disclosing their communications with him to Congress, to Special Counsel Robert S. Mueller III, or to a grand jury. But the president has not asserted it — not for Sessions, not for Jared Kushner, not for Don, Jr., and not for Steve Bannon.
On Wednesday, Fox News’ Brett Baier asked White House Chief of Staff John Kelly whether the president invoked executive privilege as to Bannon’s testimony. “No,” Kelly replied.
Why not? There are probably two main reasons. First, Trump would lose. Every American should read the Supreme Court’s decision in United States vs. Nixon. It’s easy to find on the internet, where you can read it in full or even listen to the oral argument.
The decision has aged well. It’s clear and succinct and states a rule of law that every democracy should put up on a bronze plaque: “The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court.”
Yes, the court in the Nixon case said, there might sometimes be particular needs, in particular cases, to protect particular military secrets. (That’s why we still don’t know the extent of the NSA’s warrantless wiretapping, despite the ACLU’s best efforts.) But can a president claim a generalized right to shield all his communications from Congress and the courts, just because he’s the president? No, he cannot. The court rejected that claim, because the president is not above the law.
(And of course, as the president’s lawyers well know, there is no executive privilege claim at all, even in theory, for communications that occurred during the campaign.)
The second reason the White House hasn’t claimed executive privilege is more political than legal. So far, the White House has been able to count on the congressional committees lacking the resolve to compel testimony through the courts. Thus, the administration can claim it’s being “fully cooperative” while White House aides continue to refuse to answer questions.
The White House is getting a lot of mileage out of the trope that it has nothing to hide and is fully cooperating with the various Russia investigations. This trope even morphed into a trial balloon last week, when the president suggested that he might not bother sitting for an interview with Mueller, after all, because he’s given him so much already.
Maintaining the pretense of full cooperation has been the focus of lead White House attorney Ty Cobb for the past six months. But as Cobb knows, that whole facade comes crashing down with the first presidential invocation of executive privilege.
Bannon may bring the situation to a head. He’s not going to get very far claiming “executive privilege” when he has to answer to courts and prosecutors. So either the president gives up the pretense of cooperation and formally asserts the privilege and defends it in court, or he lets Bannon talk.
Unless, that is, Bannon seeks refuge in another privilege — one that’s his alone and that is guaranteed to him by the same Constitution that provides that the president is not above the law: the 5th Amendment right against self-incrimination.
Caleb Mason is a partner at Brown White & Osborn LLP and a former federal prosecutor.