In connection with my last post, I want to elaborate on Steve Bannon’s advice of counsel defense. The essence of this defense is that legal advice from his counsel that he was not obligated to comply with the select committee’s subpoena negated the “willfulness” required to violate the contempt of Congress statute (2 U.S.C. §192). Leaving aside the question whether this is a valid legal defense (spoiler alert: it is not), Bannon claims that this defense is bolstered by Office of Legal Counsel opinions which he interprets to excuse him from compliance with the select committee’s subpoena. For example, in his discovery motion, Bannon states “[Bannon’s lawyer] consistently advised the Government that Mr. Bannon was acting in accordance with legal opinions issued by the Office of Legal Counsel, U.S. Department of Justice, which analyzed the issues under analogous circumstances.”
The significance of the OLC opinions to the purported defense is unclear. One possibility is that Bannon was directly relying on the OLC opinions themselves, rather than simply on his lawyer’s interpretation of them. Another possibility is that the OLC opinions are cited to bolster the reasonableness of the legal advice the lawyer (Robert Costello) provided his client.
Bannon may also be trying to advance something of a slippery slope argument. If he cannot rely directly or indirectly on OLC opinions, then what of executive officials who receive an OLC opinion that specifically advises they need not comply with a congressional subpoena? This is the scenario that Judge Nichols was apparently concerned about when he posed a hypothetical in which Ron Klain refuses to testify based on OLC advice that he has absolute immunity from compelled congressional testimony. In this situation, Nichols asked, could DOJ advise Klain he is immune and then turn around and prosecute him for defying the congressional subpoena?