Bannon's Refusal to Testify

During ten hours of questioning by the House Intelligence Committee, on the instructions of the Trump White House, Steve Bannon refused to testify about his work for the Trump administration and the Trump transition team.  But the leaks tell us that Bannon did testify about his time working on the Trump election campaign for president.

So let me explain, as an attorney who worked for Judicial Watch under Larry Klayman and has more recently performed legal work for Klayman at Freedom Watch.  The elites in Congress and the news media should know better.

The Washington establishment was all upset, as if this were something new or unusual.  In the adrenaline-soaked, hyperventilating atmosphere of official Washington, this got everyone outraged.

Ranking Democrat Adam Schiff (D-Calif.) and others demagogued the incident.  As New York magazine reported: after Bannon's attorney, William Burck, conferred with White House officials, Bannon "doubled down" on his refusal to answer the committee's questions, according to Schiff.

"This was effectively a gag order by the White House preventing this witness from answering almost any question concerning his time in the transition or the administration," Schiff said.

"The scope of this assertion of privilege, if that's what it is, is breathtaking.  It goes well beyond anything we have seen in this investigation," Schiff continued.  "If the White House is permitted to maintain that kind of gag rule on a witness, no congressional investigation could ever be effective.  So this obviously can't stand."

That article also read: "Schiff wasn't the only committee member who found Bannon's legal justification appalling.  Democratic [r]epresentative Jim Himes described it as a 'very novel theory of executive privilege,' on [Anderson Cooper 360]."  As reported by [The Hill]: "[t]hat stance infuriated lawmakers.  Sources described the meeting as a 'total free-for-all' and 'brutal.'"

But Schiff and Himes are wrong.  The reason is Touhy.  Or more fully, United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), a Supreme Court case that goes back to the 1950s.

The Supreme Court's Touhy doctrine is not in itself a privilege.  It is a process by which the government can preserve the status quo while questions of possible privilege or other grounds for confidentiality are considered.  A government agency does have the authority under Touhy to prohibit a current or former employee or official from providing documents or testifying – even if the person wants to testify.  (The legal precedents only started with Touhy itself, and this doctrine has been discussed and reasserted in federal courts for decades thereafter.)

So it is legally proper and commonplace for a government agency to put a "hold" restriction so that the agency can figure out what parts of a government employee's testimony do or do not qualify under the terms of one or even several types of privilege or confidentiality.  For example, law enforcement agencies often withhold information, but only until an investigation is complete or perhaps a case goes to trial.

Steve Bannon had no authority to testify about his time at the White House once ordered not to.  The White House has the right to order a current or former employee to stop until it has had time to review the situation and decide whether to invoke one or more privileges in regard to specific parts of the testimony.  Anyone in the business of taking testimony from government employees, such as occurs in congressional committees, ought to know this.

In the short run, this serves as a complete block on getting a government employee to testify.  Eventually, a government agency will need to review the situation and come to a decision.  At that point, the agency must assert a valid privilege that meets all the requirements under the facts of the circumstance.  This includes the White House, which is technically the executive office of the president.

As the Supreme Court upheld in Touhy, if government employees went around providing documents (like James Comey) or talking unrestrained (like Robert Mueller), then legitimate privileges would become worthless.  By the time a government agency was to assert the privilege, it would already be too late.  The horses would already have left the barn.

The only people who got this issue right are White House spokeswoman Sarah Huckabee Sanders and New York magazine.  Sanders told reporters, "As with all congressional inquiries touching upon the White House, Congress must consult with the White House prior to obtaining confidential material.  This is part of a judicially recognized process that goes back decades."

Ms. Sanders gets it.  The preening, self-important members of Congress and the news media seem uninformed.

Now, there was one part of Bannon's refusal to testify on the White House's orders that is somewhat new: do claims of privilege include the time that an employee or official worked on the presidential transition team?  Most people don't seem to understand that the transition team is actually "a thing" – an actual government entity.  It is a government operation.  People on payroll actually getting paid for the transition get a government paycheck.

So there is a question whether the White House can assert executive privilege or other privileges (like the deliberative process privilege) over activities during the transition.  But again, Touhy allows any government agency to stop the proceedings until such controversies can be sorted out.

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