The dispute between the legal teams of Donald Trump and Stephen Bannon

When we learned over the weekend that Donald Trump’s adviser, Stephen K. Bannon, was suddenly willing to testify before the January 6 committee, a big and obvious question was: why? The most logical answer seemed to be that Bannon should be tried next week for his previous refusal to testify and turn over documents, and it was a last-minute attempt to try to avoid a conviction. Another would be that Trump wants Bannon to fight for him, having grown tired of the largely irrefutable evidence against him presented by the committee.

But a new court filing in the Bannon saga reveals something intriguing: a dispute between his legal teams and Trump’s that appears to be escalating.

In the filing, federal prosecutors revealed that they recently interviewed Trump’s attorney, Justin Clark. They say Clark confirmed something that prosecutors have long argued and some close observers have suspected – that Trump never actually claimed executive privilege with respect to specific things (emphasis added):

On June 29, 2022, former President Donald Trump’s attorney, who sent the letter on which the defendant claimed his non-compliance was based, confirmed what his correspondence had already established: that the former president never claimed executive privilege over particular information or documents; that the lawyer for the former president never requested nor was invited to attend the deposition of the defendant before the select committee; that the lawyer for the accused misrepresented in committee what the lawyer for the former president had told the lawyer for the accused; and that the former president’s attorney made it clear to the defendant’s attorney that the letter provided no basis for total non-compliance in the first place.

Although Clark is not named in the filing, the letter cited is evidently his October 6 letter to Bannon’s attorney, Robert J. Costello. And Costello is “defendant’s counsel” who the government says misrepresented the position of Trump’s legal team, also citing Clark’s interview as confirmation of this.

The filing further bolsters a dispute over Bannon’s initial claim that Trump invoked executive privilege, which Trump said over the weekend he was now prepared to waive. There were several signs that the claim wasn’t all it was supposed to be — at least in Team Trump’s estimation — and now Clark seems to have confirmed that.

Prosecutors did not detail Clark’s interview except to characterize it as confirming their position on the claims of Bannon’s legal team. But Costello fired back on Monday.

“I didn’t misrepresent anything,” Costello told The Washington Post. “Clark’s statements are inherently inconsistent.”

The dispute dates back to when the Jan. 6 committee was seeking testimony from Bannon in October.

In the October 6 letter, Clark asked Bannon “if applicable, to invoke any immunities and privileges he may have from compelled testimony in response to the subpoena.” He also ordered Bannon not to produce any privileged documents or testimony.

But notably, the letter did not explain what, in fact, was allegedly privileged. And what followed was apparently multiple attempts by Costello to get Trump’s legal team to be more specific — attempts that were apparently made to no avail.

On October 13, Costello wrote to Clark stating that the January 6 committee did not consider the executive privilege claim to be valid and urging Trump’s legal team to contact the committee.

“I would strongly suggest that direct communication from you on behalf of President Trump would clarify the president’s position regarding the request for documents and deposition requests,” Costello told Clark.

That same day, Costello sent the committee a letter stating that Clark “had informed us that President Trump is exercising his executive privilege.” He said that was the reason Bannon would not produce testimony or documents.

On October 14, the deadline for Bannon’s testimony expired. And that evening, Clark emailed Costello, apparently disagreeing with how Costello had characterized the position of Trump’s legal team the day before.

“To be clear, in our conversation yesterday, I simply reiterated the same instruction from my letter dated October 6, 2021 and attached below,” Clark said.

This apparently angered Costello, who quickly forwarded Clark’s email to Bannon and others and said Clark’s apparent objection was “not accurate”.

“He definitely said Trump was invoking executive privilege,” Costello wrote. Costello added, “I don’t know what game Clark is playing, but that puts Steve Bannon in a dangerous position. You must beware.”

Two days later, on October 16, Clark followed with more explicit instructions. Importantly, he said the position of Trump’s legal team was that Bannon did not have immunity to testify. Clark made it clear Bannon’s legal team was free to make its own decision, but suggested she shouldn’t cite Trump’s legal team for the claim.

“Just to reiterate, our [Oct. 6] The letter referenced below does not indicate that we believe there is testimonial immunity for your client,” Clark wrote. “As I told you the other day, we don’t believe there are any. Now you may have made a different decision. It is entirely your decision. But as I also pointed out the other day, other means of claiming the privilege – if you deem it appropriate – exist and are your responsibility.

(This is very important for the case of the government accusing Bannon of contempt of Congress for refusing to cooperate, because it is a record that the Trump team did not claim that Bannon was completely immune from testifying .)

In addition to the emails, the Justice Department, in a November recap of an interview with Costello, summed up Clark’s reluctance to fight for Bannon’s privilege claims:

COSTELLO asked CLARK to reach out to the select committee and express directly to the select committee what COSTELLO and BANNON were confused about regarding executive privilege. COSTELLO estimated that he had asked CLARK about two or three times for this, however, CLARK did not contact the select committee.

CLARK would not advise for COSTELLO what would be covered by executive privilege and CLARK left that decision to those who received the select committee subpoena. CLARK also declined to contact the select committee on behalf of COSTELLO or BANNON.

Timing here is key. This was all happening around Bannon’s testimonial deadline — October 14. Costello cited the October 6 letter and another October 13 communication as validating Bannon’s noncompliance. But after the deadline expired, Trump’s legal team on Oct. 16 explicitly said it believed Bannon lacked testimonial immunity and was undermining his attorney’s claims of executive privilege. The following week, the House voted to hold Bannon in defiance of Congress. He was charged for this on November 12.

A key question is why Trump’s legal team wouldn’t do more to back up Bannon’s claims. At Lawfare, Roger Parloff theorizes that he refused to do so for selfish reasons:

One possibility is that – to shield Trump from political or even criminal liability – he wanted to keep Trump away from whatever Bannon and his cohorts were doing at the Willard Hotel. [on Jan. 6]. Unambiguously asserting executive privilege over these communications would tend to admit that the folks at the Willard Hotel were acting for Trump in some way.

Trump’s legal team argued that it treated Bannon’s executive privilege claims the same as many other aides and advisers called to testify. But regardless, Bannon’s team clearly wanted more – and didn’t get it. Instead, he received warnings that he was going too far in relying on what little the Trump team had given him.

Costello was obviously frustrated by this, and his comment on Monday about how “Clark’s statements are internally inconsistent” indicates that this won’t be the last we hear of any of this. (A lawyer for Clark declined to comment.) Costello opted out of representing Bannon last week, citing his status as a witness in the case.

Costello also disputed that Trump did not specifically invoke executive privilege, referring to Trump’s letter over the weekend saying he would withdraw his claim for executive privilege.

“Read President Trump’s recent letter stating that he asserted executive privilege over Bannon,” Costello said.

There is a valid distinction at play between whether Trump did not invoke executive privilege at all or simply did not invoke it as precisely as Costello would have liked. Monday’s filing simply says Clark confirmed that Trump did not rely on him “on any particular information or documents.” But notably, Costello in his Oct. 14 email seemed to believe that Trump’s legal team had indeed disputed that it had asserted executive privilege as claimed — and that Clark was “playing” a game. “game” that “puts Steve Bannon in a dangerous position”. .”

Bannon is now in this dangerous position. And if Trump wants Bannon to fight for him in public hearings, that dispute is certainly looming in the background.


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