More on Bannon and OLC

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?

Leaving aside the key differences between this hypothetical and Bannon’s actual situation (discussed in my last post), it is true that OLC/DOJ would maintain that someone in Klain’s situation could not be prosecuted. But the reason for this is not that Klain would lack the willfulness required to violate the statute. Instead, OLC’s rationale is that such a prosecution “would significantly burden and immeasurably impair the President’s ability to fulfill his constitutional duties.” Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 134 (1984). This rationale has no application to a situation where a former president purports to authorize a private citizen to assert privileges “to the fullest extent permitted by law” but does so without the support, and indeed in contravention of the views, of the incumbent president.

In the same memorandum OLC added, albeit in a footnote, that “[i]n addition to the encroachment on the constitutionally required separation of powers that prosecution of an Executive Branch official in this context would entail, there could be a serious due process problem if such an official were subjected to criminal penalties for obeying an express Presidential order, an order which was accompanied by advice from the Attorney General that compliance with the Presidential directive was not only consistent with the constitutional duties of the Executive Branch, but also affirmatively necessary in order to aid the President in the performance of his constitutional obligations to take care that the law was faithfully executed.” Id. at 134 n.34. Here none of the factors that OLC believed “could” raise a “serious due process problem” are present: (1) Bannon is not an executive official and was not subpoenaed in connection with any official duties; (2) he was not give any “express presidential order,” even by the former president; (3) he had no instruction or permission of any kind to resist the subpoena from the incumbent president; and (4) he had no advice from the attorney general or DOJ/OLC to support a refusal to comply.

Even if there were some merit to Bannon’s claim of reliance on OLC (either as part of an advice of counsel defense or another legal theory such as estoppel), the only relevant evidence would consist of the information available to Bannon or his counsel at the time they decided to defy the subpoena. Internal DOJ/OLC memoranda or legal analyses unknown to them could not have been relied on, yet Judge Nichols inexplicably ordered the government to search for such material and provide it to the defense.

More oddly still, the court focused its order on the analysis of a legal issue never raised by Bannon at all, namely the (alleged) immunity of senior White House officials from compelled congressional testimony. As explained below, Bannon never claimed that he was protected by the doctrine of testimonial immunity, and to the contrary Costello expressly denied that they were making such a claim.

In a letter sent to the select committee on October 13, 2021, Costello claimed that Justin Clark, counsel for former President Trump, “informed us that President Trump is exercising his executive privilege; therefore, he has directed Mr. Bannon not to produce documents or testify until the issue of executive privilege is resolved.” Although Costello did not claim Bannon was immune from testifying, he did overstate the direction received from Clark, who had never told Bannon not to produce documents or testify until any disputes regarding executive privilege were resolved. Clark brought this misstatement to Costello’s attention in an email the next day. See U.S. Reply on Motion in Limine at 7.

To avoid any confusion, Clark emailed Costello again two days later:

Just to reiterate, our letter didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now you may have made a different determination. That is entirely your call.

U.S. Reply on Motion in Limine at 8 (emphasis added). Thus, Clark not only did not instruct Bannon or Costello to invoke immunity, he did not authorize them to do so, and he made clear he did not believe they were entitled to do so.

Costello took the hint. When in November 2021 he attempted to persuade the U.S. attorney’s office not to indict his client, Costello responded to a question about Clark’s email by denying that he and Bannon ever claimed immunity. See US-001782 (“He and Bannon, referring to Clark’s email, never claimed immunity.”).

To be sure, one of Bannon’s legal filings (in opposition to the prosecution’s motion to exclude the advice of counsel defense at trial) briefly discussed OLC’s views on absolute immunity (Bannon Br. in opposition to Motion in Limine at 17-18), but it stops short of claiming that the doctrine applies to Bannon or that Bannon ever relied on OLC’s views on that subject. Instead, it appears that the discussion is designed to illustrate the complexity of the legal landscape facing Bannon and the necessity of relying on counsel to navigate that complexity.

Perhaps it was also designed to capture the judge’s attention in light of his prior experience litigating the issue of absolute immunity. If so, it seems to have succeeded—Judge Nichols has opened up a can of worms with little apparent relevance to the case before him.