I think it’s safe to say that Steve Bannon thinks of himself as a very clever person. The former White House adviser and Breitbart executive chairman has been throwing bombs and dodging consequences fairly successfully for years now.
So how, then, to respond to Bannon’s offer over the weekend to finally testify before the House Jan. 6 committee after refusing to cooperate? Answer: with a grain of salt big enough to coat a lifetime supply of pretzels, my friends.
Let’s take a close look at the letter Bannon’s lawyer sent to committee Chair Bennie Thompson, D-Miss., which was first reported by The Guardian. “Mr. Bannon has not had a change of posture or of heart,” Robert Costello wrote. Former President Donald Trump had invoked executive privilege in October, he explained, preventing his client from providing the testimony and documents that the committee had subpoenaed.
Why would Trump, after spending years arguing for a nearly despotic view of executive power, yield on this front?
Now, things have changed: Trump has provided a letter informing Bannon that Trump will “waive Executive Privilege for you, which allows you to go in and testify truthfully and fairly, as per the request of the Unselect Committee of political Thugs and Hacks, who have allowed no Due Process, no Cross-Examination, and no real Republican members or witnesses to be present or interviewed.” Costello explained that this now means Bannon “is willing to, and indeed prefers, to testify at your public hearing.”
There’s clearly a lot to unpack there, not least the former president’s ever-loose grasp on the niceties of the English language. The biggest surface-level takeaway is that if Trump was the reason Bannon couldn’t testify before, he is now willing to stand aside and allow Bannon’s testimony — ideally publicly. But that begs the question: Why would Trump, after spending years arguing for a nearly despotic view of executive power, yield on this front?
None of the answers make Bannon’s offer appealing.
First, Trump is reportedly tired of seeing the Jan. 6 hearings proceed without his cronies being able to defend him. Instead, we’ve had a tightly run production that doesn’t pretend to be a trial and hasn’t been plagued with a series of non sequiturs and distractions that Republicans offered during the impeachment proceedings. In offering up Bannon specifically for a public hearing, the hope is clearly that he’ll inject some nonsense into the proceedings that will make Trump happy. (Rep. Zoe Lofgren, D-Calif., a committee member, dismissed that idea Sunday, noting that Bannon would initially testify behind closed doors like every other witness so far.)
Second, Bannon has been charged with contempt of Congress — and his trial is scheduled to begin in one week. A federal grand jury indicted him last year, noting that he had refused to appear before Congress or turn over documents. That makes it awfully convenient that Trump would now allow Bannon to testify, something that could potentially make him seem more reasonable in the eyes of a jury.
But in a late-night filing, Justice Department prosecutors dismissed that prospect with a vengeance. As they pointed out, the charge was in connection with refusing to comply with the committee’s subpoena in October. “The Defendant’s purported desire to testify does not erase his past contempt,” the filing argued. “Evidence of it is thus irrelevant” and should be excluded from the trial, due to its “propensity to result in confusion and a waste of time on collateral issues,” they wrote. Also, importantly, the Justice Department’s lawyers noticed what was missing from Bannon’s letter: an offer to turn over the documents that were also subpoenaed.
Bannon and Trump were clearly hoping to pull as fast on the Jan. 6 committee, the Justice Department or both.
Third, and most telling, is that Trump apparently never actually invoked executive privilege in October when Bannon was subpoenaed. In its filing, the Justice Department noted that Trump’s attorney confirmed as much in an interview on June 29 and that “the former President’s counsel made clear to the Defendant’s attorney that the letter provided is no basis for total noncompliance.” Further, the DOJ said it gave Bannon’s lawyer an FBI report from that interview on June 30 — over a week before the date on Costello’s letter to Thompson.
It's worth noting that the “executive privilege” argument was always ridiculous, given that Bannon was not a part of the executive branch by the time the 2020 presidential election was held. And given the court’s dismissal of that claim last month, it wasn’t going to be helpful during the trial, so why cling to it? Trump’s letter was more a case of admitting something that was already the case than him giving up any specific privileges.
Bannon and Trump were clearly hoping to pull as fast on the Jan. 6 committee, the Justice Department or both. That has not been the case, as the judge in Bannon’s trial ruled Monday that it will proceed as scheduled. It’s an added bonus that we’re now reminded of just how deeply involved Bannon was in promoting and hyping Jan. 6 to his and Trump’s acolytes.
And really, isn’t this just a perfect distillation of Bannon’s entire schtick? The bit of 4-D chess that he and his lawyer cooked up was clever enough to get some headlines about his complicity but ultimately not clever enough to, you know, actually help him in any way. This time, though, there’s no presidential pardon waiting at the other side of a potential conviction.
