Steve Bannon has cut a deal with the Mueller investigation to sit for an interview instead of testifying before a grand jury. It was revealed yesterday that Bannon was subpoenaed by Mueller’s team and would have had to testify, but there was speculation, even at the time, that Mueller was using the subpoena as a scare tactic to compel Bannon to cooperate more fully. Bannon had been the only member of President Trump’s inner circle to be subpoenaed by Mueller.
Mueller’s subpoena, was not the only one Bannon received yesterday however. Bannon testified in a closed-door hearing before the House Intelligence Committee yesterday, but refused to answer any of the Committee’s questions, asserting executive privilege. Bannon revealed during the testimony that he was willing to answer all of the Committee’s questions but was instructed to not do so by the White House.
The statement angered many on the Committee, Republican and Democratic members alike. They issued Bannon a subpoena on the spot, compelling him to cooperate. It was a rare subpoena to compel testimony given with bipartisan support. Committee chairman, Rep. Devin Nunes, who wasn’t participating in the interview, came specifically to the secure meeting to sign it.
The White House said it instructed Bannon not to answer the Committee’s questions claiming that any communication between Bannon and President Trump is protected under executive privilege, the presidential power that says forms of communication between a president and top advisers are private and should remain confidential. The Committee was interested in asking Bannon about communication between he and the President during the transition period after Election Day 2016, and after Bannon left the White House last summer.
Executive privilege is a widely respected power on Capitol Hill, but there is less certainty about whether the privilege applies to the transition period. There is even less certainty about the application of the power when someone is no longer employed by the White House. Bannon and the president communicated many times after Bannon’s departure.
There was also the revelation that Bannon’s lawyer was communicating with the White House via phone, in real time during the hearing, asking for instructions on which questions Bannon should answer and which he should not. That appears to be normal, however, in cases like this.
“Sometimes they actually have a White House attorney present in the room. This time it was something that was relayed via phone and again was following standard procedure for an instance like this and something that will likely happen again on any other number of occasions, not just within this administration but future administrations,” White House Press Secretary Sarah Huckabee Sanders said.
It was also revealed today that Bannon plans to cooperate fully with Mueller’s team. “Mueller will hear everything Bannon has to say,” a source close to Bannon said. The main advantage to sitting for an interview with investigators rather than testifying before a grand jury is that in an interview, a witness can have their attorney present. No one is allowed in a grand jury room other than the witness, prosecutors, the grand jurors and the court reporter. Having a court reporter present also makes it easier for prosecutors to charge a witness with making false statements.