Trump’s Attorney Debunked Trump’s Claim to Have Invoked Executive Privilege Two Weeks Ago

Since WaPo first reported as BREAKING NEWS that they had been duped by Steve Bannon, I’ve spent a whole bunch of time pointing out that the claims multiple outlets were falsely reporting as true — specifically, that Trump had invoked Executive Privilege over Bannon’s testimony — were instead news only because it was a transparent lie.

I laid out all the reasons why it could not be the case that an Executive Privilege invocation was the reason Bannon had refused to testify:

  • The January 6 Committee asked for things that Bannon’s own attorney, Robert Costello, acknowledged weren’t privileged
  • Trump’s attorney, Justin Clark, provided broad guidance about claiming privileges generally but did not do the things — like making individualized privilege claims — required to invoke Executive Privilege
  • Clark acknowledged that some of the things DOJ asked for weren’t privileged at all
  • Clark also twice warned Costello that his guidance did not extend to immunity from testifying entirely, which Costello had repeatedly claimed it did

I even provided links — so all the journalists getting their ass handed to them by Steve Bannon — could check for themselves.

Those same journalists plus Mar-a-Lago stenographer might also refer to the letter that Trump’s attorney, Justin Clark, sent  Costello, which among other things acknowledges that the subpoena calls for records and testimony,

including but not limited to information which is potentially protected from disclosure by the executive and other privileges, including among others the presidential communications, deliberative process, and attorney-client privileges.

That’s a far cry from invoking Executive Privilege over the things that might actually be privileged, and it concedes that not all potentially privileged materials are covered by Executive Privilege and further concedes the subpoena is “not limited” to information that might be privileged. So even if Bannon’s decision to blow off the Committee was entirely guided by that letter, it would be inaccurate to say Trump properly invoked Executive Privilege or that Executive Privilege was the only issue.

That’s pertinent because among other things these bozos wanted to do was claim attorney-client privilege over meetings between non-attorney Mike Flynn and non-attorney Bannon.

The journalists plus Mar-a-Lago stenographer might also check out the two emails that Clark sent Costello, which made it clear that his instructions didn’t go beyond that ambivalent letter, and sure as hell didn’t give him immunity from showing up and answering questions, which is (contra to what the WaPo claims) what distinguishes Bannon from Mark Meadows and Dan Scavino, on whose behalf Trump did claim immunity from testifying, valid or not. [my emphasis]

I should have just waited.

In a motion in limine from the government seeking to exclude Bannon’s latest manufactured stunt from his trial, DOJ revealed that a surprise witness identified in a recent filing was in fact Trump’s lawyer, Justin Clark, and Clark confirmed much of what I had laid out in my post.

On June 29, 2022, former President Donald Trump’s attorney, who sent the letter on which the Defendant claimed his noncompliance was based, confirmed what his correspondence has already established: that the former President never invoked executive privilege over any particular information or materials; that the former President’s counsel never asked or was asked to attend the Defendant’s deposition before the Select Committee; that the Defendant’s attorney misrepresented to the Committee what the former President’s counsel had told the Defendant’s attorney; and that the former President’s counsel made clear to the Defendant’s attorney that the letter provided no basis for total noncompliance.3 Even the Defendant’s claim that the reason he is now willing to testify is because the former President is “waiving” executive privilege is subject to question given all of the evidence and law that has been addressed in this case, of which he must be aware, demonstrating that executive privilege never provided a basis for total noncompliance in the first place.

3 The Government provided an FBI report of the interview in which the attorney made these statements to the Defendant on June 30, 2022, the day after the interview was conducted. [my emphasis]

In other words, Justin Clark has testified (and may, at Bannon’s trial) that what Trump has gotten a bunch of credulous journalists reporting as fact is a lie.

Trump’s own attorney says Trump is lying (and by association, the journalists got badly duped).

DOJ’s filing says a number of other things I’ve been saying too. First, if Bannon had really changed his mind about cooperating, he would have already turned over documents.

First, the Defendant apparently has not told the Committee he wishes to provide documents responsive to the subpoena, so his eleventh-hour efforts do nothing to begin to cure his failure to produce records.

Costello may have already known about this filing when he claimed, after Kyle Cheney asked him specifically about it, that he was going to work on documents — in the future — too.

It even points out what I did about instance of Maggie humiliating herself for Trump: In addition to sharing a lawyer with Rudy Giuliani, Bannon also shares lawyer Evan Corcoran with Trump.

The Government notes as well that news reports indicate the Defendant’s attorney in this case now also works for the former President and that his law firm is being paid by the former President’s Super PAC.4

4 “Despite Growing Evidence, a Prosecution of Trump Would Face Challenges,” N.Y. Times, June 18, 2022, available at https://www.nytimes.com/2022/06/18/us/politics/trump-jan-6- legal-defense.html (last accessed July 10, 2022); “Trump Group Pays for Jan. 6 Lawyers, Raising Concerns of Witness Pressure,” N.Y. Times, June 30, 2022, available at https://www.nytimes.com/2022/06/30/us/trump-jan-6-lawyers-witness-pressure.html (last accessed July 10, 2022)

Let’s be clear: From the start, the headlines from this latest Trump-Bannon stunt should have been that Justin Clark debunked it months ago.

But now, for the reporters who are too lazy to read the court record they’re purportedly reporting on, DOJ just made that so clear that even the credulous reporters should understand now.

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63 replies
  1. Sabine Farm says:

    Thank you Professor Wheeler.Bannon’s defense to the unlawful non- compliance with the J6 subpoena has collapsed.. His trial attorney Costello is withdrawing. His efforts to stall his trial are “ four corners offense” without the ball. The lesson to the DOJ on the Bannon indictment and Trump overall is prosecute, prosecute.Emptywheel is the master at seeing and explaining criminal pre- trial and trial machinations.

    • Sue 'em Queequeg says:

      Which, let it be noted, produces consistently asymmetrical results. As supposedly liberal outlets, the NYT, WaPo, etc. seem afraid of having their Magaland sources freeze them out but (probably rightly, alas) see no comparable risk with sources from pretty much everywhere else in the political landscape. It’s not them that are paying for access, it’s us.

  2. Peterr says:

    Maybe it would help credulous journalists and stenographers if you put BREAKING NEWS in your headlines when writing pieces like this.

    /s

    • earlofhuntingdon says:

      I don’t think there are letters big enough for many reporters to read. Plus, in the reportial hierarchy beloved by news organizations that claim to publish all the news that’s fit to print, independent journalists are still DFH. Their work is not worth crediting, even when they plagiarize it.

  3. !? says:

    An informative article:
    “Mike Jensen keeps a database of bad guys. As a senior researcher at the University of Maryland’s National Consortium for the Study of Terrorism and Responses to Terrorism (START), part of Jensen’s job is to identify violent events that occur in the U.S. and investigate whether the people involved have any ties to extremism. If they do, he adds them to his database.”
    https://fivethirtyeight.com/features/jan-6s-tangled-web-of-extremism/

  4. Frank Anon says:

    Well, CNN is now saying they were duped with their online version, quoting Justin Clark right up top. Progress?

  5. Rugger9 says:

    However, the courtier press will never learn to question GQP sources, especially anonymous ones. Until I see Chuckles Todd give up his bothsidesisms and his middle-school approach to fundamental questions (like this weekend’s claim that America wasn’t going to stand for indicting Trump like it’s a contest for Prom King) this is a rinse-lather-repeat exercise.

  6. Tom Stickler says:

    So, why has Trump allegedly written a letter to Bannon? “When you first received the subpoena to testify and provide documents, I invoked executive privilege,” Mr. Trump wrote in his letter to Mr. Bannon on Saturday. “However, I watched how unfairly you and others have been treated, having to spend vast amounts of money on legal fees and all of the trauma you must be going through for the love of your country and out of respect for the office of the president.”

    “Therefore,” he continued, “if you reach an agreement on a time and place for your testimony, I will waive executive privilege for you, which allows for you to go in and testify truthfully and fairly, as per the request of the unselect committee of political thugs and hacks.”

    • Peterr says:

      Because it got Trump’s name in the press, allowing him to continue advancing his attacks on the J6 committee narrowly and his claims that the election was stolen more broadly.

      IOW, he gets to keep cosplaying as president.

      • Raven Eye says:

        Yeah. Trump doesn’t care what happens to Bannon.

        Well — actually — he does care. Trump needs to show his beneficence in “granting” the waiver because it allows him to convince his mob that he still has power. Bannon gets slammed despite everything Trump “did” for him. “See how our enemies attack my friends?” The harder Bannon gets body-slammed, the better it looks for Trump.

        Do you think that Bannon, as a former military guy, will eventually/finally wake up to the fact that he just got one more Blue Falcon?

      • jhinx says:

        I would’ve been much more impressed if the letter had some “hereby”s and “declare”s, and was signed Donald J. Trump, 46th President of the United States (Your Favorite President).

    • MB says:

      Prolly both Trump & Bannon were counting on a public appearance in order to utilize their “flood the zone” strategy, but from what I hear, the J6 committee is insisting on a closed-door private hearing, which might make them lose interest in participating. Also, it’s a BS defense strategy relative to the contempt charge and an attempt to soften the appearance of unyielding recalcitrance on Bannon’s part, but that’s up to a judge/jury to decide, not the J6 folks…

    • Ginevra diBenci says:

      And Trump was counting on the Times, which he performatively reviles, to include in their ostensible coverage such phrases as “unselect committee” and “thugs,” which serve no one but Trump. I have to wonder if that was part of the deal–access for specific verbiage.

    • Alan K says:

      Note also “having to spend vast amounts of money on legal fees” – does this mean Trump is also stiffing Bannon?

  7. Adam Selene says:

    Behold, with this pronouncement I doth free thee from thine executive privilege obligations!

    {Whatta maroon}

  8. WilliamOckham says:

    Judge Nichols has barred essentially all of Bannon’s bullshit defenses. Bannon can’t present evidence that relied on internal DOJ opinions; can’t use entrapment by estoppel or public authority defenses; can’t pretend that anything Trump did affected his compliance with the subpoena; and can’t use the composition of the Select Committee as a defense.

    Bannon’s in real trouble.

  9. biff murphy says:

    Funny, when the story dropped at Wapo it read like b/s and when I went to comment,
    there were no comments allowed on that particular story, my question is why?
    I think they knew what they were doing, or someone did.
    Beware the clickbait.

  10. Cosmo Le Cat says:

    Judge Nichols ruled trial will not be delayed.
    Surprisingly horrific day for Bannon.

    • Tom R. says:

      Not yet on courtlistener, but AP has the story. It’s brutal:

      The rulings led one of Bannon’s attorneys, David Schoen, to speak out in frustration as he sought clarification from the judge.

      “What’s the point of going to trial here if there are no defenses?” Schoen asked.

      “Agreed,” Nichols responded.

    • Tom says:

      Well, ol’ Steverino did say last November that his contempt charge would be “the misdemeanor from hell”, but I guess just not in the way he thought it would.

  11. WilliamOckham says:

    Did Peter Navarro ever hire a lawyer for his contempt case? Because somebody needs to tell him that he should consider pleading guilty.

    • MB says:

      But first Navarro needs a bogus letter from Cosplay Prez releasing him from his executive non-privilege. Well, he does have Bannon’s situation to look at for guidance as to how things might go for him…

  12. bg says:

    So same judge who way outlied on obstruction of Congress with the lower downs is throwing the book at Bannon?

    • christopher rocco says:

      Odd, huh? Elsewhere in radio land, NPR reported the whole EP nonsense as just that, and cited extensively from DOJ calling BS on the whole charade, labeling it a stunt or delay tactic. More progress. WaPo, your turn.

  13. timbo says:

    Hopefully when the DOJ investigators stop laughing at this nonsense, they’ll get Trump before a grand jury to explain what he thinks his lawyers told him about all these claims of Executive Privilege and other oddities happening here.

  14. Cosmo Le Cat says:

    Navarro’s defense is that he didn’t know it was illegal. Unfortunately, in Bannon’s case, the judge ruled that won’t fly. Prosceutors only need to prove he acted “deliberately” and “intentionally” to defy the J6C subpoena — not that he knew it was illegal or wrong.

  15. Ginevra diBenci says:

    Did Costello withdraw from Bannon’s defense because he anticipates being called as a witness at the trial? I read that somewhere but haven’t seen it anywhere else, so I’m wondering if it’s true.

  16. Sonso says:

    I must admit that when “cosplay” became a thing (meme, term, activity), I discounted it as delayed onset adolescence (a feature of late-stage capitalism). But seeing TFG, Oath Keepers, 3%ers, I can hardly keep up any more with the junior-high-rejects-turned-mob participants from the Republican party.

    • pizza says:

      I’m former Army myself and born in a military hospital and I have a few guns. But these idiots, do they not see themselves on t.v. looking like fools in all their green and camo regalia? Playing soldier boy with their other playdates? I would be thoroughly embarrassed.
      Oh, and lest we not mention that they actually thought they would overthrow the Federal government of the United States and the most powerful military in the world. Seriously? You grown men in camo garb with your drinking buddies are going to do that?

  17. Badger Robert says:

    The TV attorneys seem to be reading @emptywheel with comprehension. At least Ari Melber and Neal Katyal seem caught up.

    • Ginevra diBenci says:

      I noticed that Rachel Maddow seemed to be also, albeit without crediting the source for her snarking dismissal of the Bannon story.

      • Peterr says:

        I had to chuckle, though, that she spent what seemed like 8-10 minutes saying “the Bannon story isn’t worth talking about.”

        • Doctor My Eyes says:

          She’s a good explainer, but I can’t watch. She. takes. forever. while repeatedly hammering home the main point.

          • Rayne says:

            You’re not her core audience. Most folks who read and participate here aren’t because they’re already ahead of her production team.

            • Ginevra diBenci says:

              Speaking of her team, they seem to have cribbed not only the “dismiss Bannon” part of her show from EW but also maybe the point she went on to contrast as important and overlooked: Jeremy Brown’s explosives. Maddow presented this in the second segment using an unusually hyped-up Barry Berke, but she definitely presented it as *her* special insight.

    • Drew says:

      I saw Neal & Ari yesterday evening. Whether they follow emptywheel or not, the thing that struck me was that Neal Katyal said, “Bannon is going to jail.” Lot’s of non-lawyers say stuff like that all the time, as do some of the more crazy ones (say, Seth Abramson) but I really didn’t expect Neal Katyal to say that a) before trial and b) before sentencing without nuance about the range of possible sentencing.

      It does seem to me that Bannon has gotten himself on the wrong side of, not just the prosecutors, but Judge Nichols, so it certainly wouldn’t be a surprise if spending more than a few nights in jail was in Bannon’s future, but I’m not a former Solicitor General of the U.S.

  18. OldTulsaDude says:

    So Bannon asks Trump to write the letter thinking it will give him an alibi for ducking the subpoena and Trump’s lawyer tells him to add that last paragraph so he can claim he wasn’t serious, then the crackerjack reporting corps pulled out their stenography pads. Sounds about right except the letter is closer to an attempt at obstruction of Justice than an alibi I would think.

  19. pizza says:

    Who is paying for Bannon’s legal fees? It can’t be him. He’d have given in long ago. He’s the kind of weasel that loves to associate with power and money, but doesn’t really have any himself, right? As has been reported here, we know he has been using/abusing this process to get as much info to his bosses as he can through discovery. I’m sure that’s worth a lot of someone else’s money. Has anyone reported on this already?

  20. The Old Redneck says:

    It is kind of fun to see Bannon realizing he’s out of options. I think he considered himself untouchable before now. My guess is he’ll end up taking the Fifth as many times as Flynn.

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