Garland’s Bannon Indictment: A Self-Defeating Act of Politicized Prosecution

The prosecution will make America’s political divisions worse still.

A ttorney General Merrick Garland waxed self-reverential after indicting Trump confidant Steve Bannon last week. “Since my first day in office,” he droned, “I have promised Justice Department employees that together we would show the American people, by word and deed, that the Department adheres to the rule of law, follows the facts and the law, and pursues equal justice under the law. Today’s charges reflect the Department’s steadfast commitment to these principles.”

No, they don’t. Last Friday’s indictment of Bannon for refusing to comply with a congressional subpoena is a sop to the Democrats’ Trump-deranged base.

The criminal-contempt charges, on which Bannon surrendered on Monday, stem from a House January 6 Committee subpoena directing him to testify and produce documents. The Justice Department has rarely brought such an indictment in American history and hasn’t tried to do so in nearly 40 years. Nor has it escaped notice that DOJ has shown no interest in prosecuting government officials who, for example, misled the FISA Court on Russiagate or refused to cooperate in Congress’s probe of such Obama-era scandals as the IRS’s harassment of conservative groups and the ATF’s “gun-walking” debacle.

While the Bannon indictment was met with glee in the media-Democrat complex, it will confirm in the minds of half the country that the Biden/Garland Justice Department is a crude weapon of the political Left — with no real interest in “equal justice under the law.” Politics aside, the indictment is counterproductive, and not just because the case is weak. If the real objective is to obtain Bannon’s testimony about the Capitol riot, then even a stronger indictment at this juncture would have been self-defeating.

Bannon will fight the case for months, maybe even for a couple of years. And now, he can add his Fifth Amendment privilege to Trump’s still-live executive privilege as a basis for refusing to cooperate. Meantime, the courts are already rapidly ruling against Trump’s privilege claim. That litigation elucidates that (a) Bannon has a legally defensible argument for declining to testify until the courts rule on the privilege claim, but (b) Bannon would lose, and probably soon, if the committee were to press its subpoena in court, as the Supreme Court encouraged Congress to do in last year’s Trump v. Mazars ruling. Thanks to the indictment, though, he is now better positioned to avoid testifying at all.

This is not about Bannon, Donald Trump’s formerly estranged White House adviser, who has groveled his way back from presidential punching bag to pardon grantee to Mar-a-Lago courtier. The issue here is the politicization of the Justice Department.

Bannon v. J-6 Committee on Executive Privilege

Let’s stipulate that executive privilege protects from disclosure not just communications between presidents and their advisers, but also the “deliberative process” — i.e., communications between executive subordinates who carry out the president’s policies.

The committee is correct that, even if Trump’s privilege claim were persuasive, much of what it wants to ask Bannon about would not conceivably be covered. Bannon was not a government official during the post-election controversy. Even assuming arguendo that communications between presidents and their private (nongovernment) advisers fit within the privilege’s carapace, the protection would be narrower than for communications involving actual government officials. More to the point, the committee wants to grill Bannon on his own actions and nonpresidential communications; on such matters, an executive-privilege claim is frivolous.

Still, the committee clearly does want to inquire into Bannon’s communications with Trump. In addition, it appears to be taking the legally untenable position that, as a former president, Trump may not assert executive privilege in an effort to block congressional inquiries into his communications during his presidency.

In a perfect world, Bannon would be required to show up for the committee deposition and, on a question-by-question basis, refuse to answer if he believes Trump’s privilege invocation applies, but otherwise respond. Analogously, regarding subpoenaed documents, he should be required to itemize, category by category, documents he is refusing to disclose on privilege grounds, but turn over any responsive documents as to which no privilege arguably applies.

Of course, we’re not in a perfect world: Bannon and Trump have an extravagant notion of what the privilege covers; the committee, on the other extreme, does not believe a former president may assert privilege at all, and even if he arguably may in some instances, he may not with respect to communications with nongovernment officials (such as Bannon was at the relevant time). Plainly, this disagreement is going to have to be sorted out by the judiciary. It would thus be more just and more efficient to get a court ruling before the questioning proceeds. And it is common for committees and prosecutors to litigate privilege claims that way — i.e., to assume that the witness will refuse to answer all questions, rather than going through the motions of making a question-by-question record before proceeding to court.

To be clear, Bannon should lose in the end. He is entitled, however, to argue that the privilege applies and to litigate its application in the courts. That is how due process works. We don’t tell a defendant that he can’t have a trial or move to suppress evidence just because the facts and law appear to be against him. The Justice Department’s obligation is to do justice, not win one for the Democrats. It is the guardian of a system in which we give people their day in court when there is a real legal dispute.

And here, there is such a dispute. Bannon and Trump are not fabricating an executive privilege for former presidents out of whole cloth. They are relying on an explicit, if ill-conceived, Supreme Court opinion.

A Low-Risk Soap Box for Bannon

There are two criminal contempt counts in the indictment. Yet, contrary to DOJ’s bombast, they are just misdemeanors. The indictment is not a real threat to Bannon; it is a low-risk soapbox. For his burgeoning career as MAGA’s media majordomo, the indictment is a coup. On the other side of the equation, Bannon stands a good chance of acquittal (for reasons we’ll come to). Even if he were finally convicted, after a year or two of trial and appeals, he would be facing no more than a month or three in jail.

Ergo, his incentive is to jump with both feet into a public battle against a committee that Republicans overwhelmingly disfavor — seeing it as a partisan hatchet job designed either to persecute Trump (according to the GOP’s pro-Trump faction), or to keep Trump relevant while Biden flails (according to the GOP’s growing “I wish Trump would just fade away” faction).

Now, why do I say Bannon has a good chance of beating the case? Because a contempt charge is not easy to prove.

The controlling statute requires prosecutors to establish that the defendant acted willfully in defaulting on a congressional subpoena. In any criminal case, the government must establish the defendant’s criminal intent (mens rea) beyond a reasonable doubt. Of the criminal law’s various gradations of mens rea, willfulness is the toughest one to prove. As explained by Justice Ruth Bader Ginsburg, writing for the Supreme Court in Ratzlaf v. United States (1995), to demonstrate that a defendant acted willfully, the government must show that he knew what the law required and acted with a bad purpose to disobey that mandate.

With that in mind, let’s turn to the indictment. It recounts that when Bannon refused to produce documents as directed by the subpoena on October 7, 2021, his attorney informed the committee of former President Trump’s instruction that he was asserting executive privilege and that Bannon should withhold testimony and documents “to the fullest extent permitted by law” (emphasis added).

Take note of that, for it is the antithesis of a bad purpose to break the law. Bannon did not say he was unwilling to comply with what the law required. Rather, in subsequently explaining why he would not appear to testify on October 14, Bannon’s counsel advised the committee that his client would stand down “until such time as you reach an agreement with President Trump or receive a court ruling as to the extent, scope and application of executive privilege.”

How could it be willful noncompliance with the law to say, in effect, “I will follow the directive of a court of law” — especially when, as we shall see, the Supreme Court has both invited the privilege claim at issue and indicated that any dispute over its scope is properly resolved by courts?

Bannon’s position is no different from that taken by some Republican witnesses during the House impeachment proceedings in 2019 (e.g., former Trump national-security adviser John Bolton and his deputy, Charles Kupperman). House Democrats grumbled but took no action to censure or sue those witnesses — plainly fearing they’d lose in court.

In other instances, moreover, House Democrats have insisted that sweeping assertions of executive privilege should be resolved by the courts — exactly what Bannon claims here. For example, the House Judiciary Committee went to court to try to force former Trump White House counsel Don McGahn to testify about privileged communications with President Trump in one of its impeachment investigations. And after Biden took office, that committee even acceded to White House demands for strict limitations on what McGahn could be asked — notwithstanding that (a) Trump was no longer in office, and (b) while in office, Trump had waived his privilege to allow McGahn to cooperate with the Mueller probe.

Bannon’s defense has a lot to work with here.

Do Former Presidents Retain Executive Privilege?

As I have explained, I believe the constitutional claim of confidentiality for executive communications, which is rooted in separation of powers, is a privilege that belongs only to the incumbent president. A former president — a private citizen who has no executive power — should not be able to claim a privilege that belongs not to a person (i.e., not even to Joe Biden, who is president at the moment) but to the executive branch of the United States government, to be invoked only by the sitting chief executive.

Thus, if we were writing on a blank slate, I’d agree with the January 6 Committee that former President Trump has no business asserting executive privilege. But we’re not on tabula rasa. The Supreme Court has explicitly said that former presidents retain executive privilege.

To be sure, the scope of this privilege depends on the circumstances, such as the nature and importance of the inquiry, the subject matter of the communications at issue, and whether the incumbent president supports the privilege claim. But the fact that post-presidential executive privilege is a valid claim is not open to credible dispute. In addition, because fixing the scope of the privilege in any particular situation calls for a variegated, fact-intensive inquiry, it is reasonable — and certainly not contemptuous of Congress — to maintain that court intervention is warranted.

A constitutional conservative can empathize with the committee’s exasperation (though not with the Justice Department’s heavy-handedness). Again, former presidents should have no right to claim executive privilege. For the Supreme Court to have said otherwise undermines the unitary executive — the theory that the Constitution reposes all executive power in one officer, the president, which was memorably articulated in Justice Antonin Scalia’s famous Morrison v. Olson (1988) dissent, and reaffirmed last year by Chief Justice John Roberts’s opinion for the Court in Seila Law v. CFPB. Nevertheless, the Court has endorsed the concept that former presidents retain executive privilege — albeit a very qualified privilege. As Justice William Brennan, writing for the majority, put it in Nixon v. Administrator of General Services (1977):

The confidentiality necessary to this exchange [of information between a president and his advisers] cannot be measured by the few months or years between the submission of the information and the end of the President’s tenure; the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic. Therefore the privilege survives the individual President’s tenure. [Emphasis added.]

The Justice Department’s Disingenuous Indictment

Garland’s indictment of Bannon relates that committee chairman Bennie G. Thompson rejected the privilege claim when Bannon raised it, pointing out that “President Trump had not made any privilege assertion to the Committee.” This is remarkably disingenuous.

As the DOJ well knows, the issue is not that a congressional committee, which is controlled by partisan Democrats who badly want the information at issue, has unsurprisingly rejected the Trump privilege claim. The issue is that the Supreme Court has explicitly recognized the privilege claim on which Bannon is relying. Yet nowhere in the nine-page indictment does the DOJ see fit to mention Nixon v. Administrator.

Moreover, how can the DOJ suggest in its indictment that “President Trump has not made any privilege assertion to the Committee,” when the DOJ knows well that President Trump has sued the committee in federal court precisely over his privilege claim? The case, in fact, is laboriously titled “Donald J. Trump v. Bennie G. Thompson in his official capacity as Chairman of the United States House Select Committee to Investigate the January 6th Attack on the United States Capitol.”

Not only that. Three days before Bannon’s indictment was announced, Judge Tanya S. Chutkan, an Obama appointee to the federal district court in Washington, D.C., issued a 39-page opinion, in which she acknowledged that the Supreme Court had “found, as a threshold matter that [executive] privilege survives the end of a president’s term in office.” That is, Judge Chutkan conceded that Trump’s claim of privilege was not improper, but that it had to be weighed against the competing considerations — which considerations, she proceeded exactingly to show, outweighed the executive branch’s interest in confidentiality.

That’s the bottom line. Trump’s privilege claim is not entitled to win, but it is entitled to be asserted and weighed by the courts against the committee’s demands for information.

If that were not made clear enough by the district court’s opinion, the U.S. Court of Appeals for the D.C. Circuit stayed the lower-court ruling to enable Trump to litigate his privilege claims on appeal. Given the DOJ’s misleading assertion in the Bannon indictment that Trump has not asserted executive privilege, it is worth quoting from the short order — issued the day before the attorney general personally announced the indictment. Garland’s former colleagues on the D.C. Circuit bench stated that, “The purpose of this administrative injunction is to protect the court’s jurisdiction to address [Trump’s] claims of executive privilege” [emphasis added].

One of a federal prosecutor’s most important tasks is to provide the grand jury with objective instructions on points of law. To obtain Bannon’s indictment, prosecutors would have to have instructed the grand jury that Bannon’s alleged contempt was willful — i.e., that (a) he knew the law required him to provide testimony and documents, and (b) he refused to do so with bad intent.

In point of fact, Bannon, with advice of counsel, informed the committee that the former president had in fact asserted a privilege against disclosure. Thus, Bannon’s position was that he did not know what the law required under the circumstances — the legislative branch was ordering him to appear while insisting that Trump could not assert a privilege covering communications with Bannon, while Trump insisted that his presidential communications with Bannon should be withheld from Congress under a former president’s privilege recognized by the Supreme Court.

Bannon did not outright refuse to testify, as the Justice Department alleges. He represented that he was willing to testify and provide documents if the court ruled that the privilege had been overcome (or if Trump and the Committee came to an agreement about the scope of disclosure).

Given all that, it would be interesting to know exactly what legal instructions Garland’s prosecutor gave the grand jury regarding the required mens rea element of willfulness. Was the grand jury told — notwithstanding the indictment’s suggestion to the contrary — that Trump had asserted privilege and was currently litigating that assertion against the committee in court? Was the grand jury told that Supreme Court jurisprudence, for over 40 years, has said former presidents may assert executive privilege? Was the grand jury told that, in past instances, Congress has disagreed with such assertions and turned to the courts to resolve them — as Bannon was asking the committee to do?

Conclusion

The Biden Justice Department’s highly unusual and patently politicized congressional contempt indictment of Steve Bannon is a doleful development on every level. It will exacerbate Republican disillusion about the House January 6 Committee. On the other hand, if you believe a congressional investigation of the Capitol riot is important, and that the committee should get Bannon’s evidence, the indictment makes that less likely.

Meanwhile, Bannon has a good chance of beating the rap, after long delay. The Justice Department, which has to know this prosecution will be tough to win, brought it anyway, even though doing so was certain to bolster the belief that Democrats are weaponizing law enforcement — a belief gripping much of the country after Attorney General Garland’s inexcusable threat of federal investigations against parents protesting progressive indoctrination in the schools.

Joe Biden ran as the candidate who would bridge America’s deep divide. He has made things much worse, and his Justice Department’s Bannon prosecution will make them worse still.