The lawyer representing former top Trump adviser Steve Bannon explained on Tuesday why his client rejected a subpoena issued by the Jan. 6 Committee, saying that Bannon “had no choice” but to do so.
Essentially, attorney David Schoen said that Bannon was instructed to invoke executive privilege by former President Donald Trump, which left him with just one option.
“Mr. Bannon’s lawyer received a letter on behalf of former President Trump, invoking the privilege, directing him not to appear, directing him not to turn over documents,” said Schoen, who also represented Trump during his impeachment proceedings earlier this year, in an interview with CNN’s Brianna Keilar.
“That’s how privilege is invoked. And as a layperson, once privilege is invoked, in my view, based on the advice he got from his lawyer, Mr. Bannon had no choice,” he added.
Bannon, a longtime ally of Trump’s, was released without bail Monday after a hearing on criminal contempt charges for defying the Jan. 6 committee’s subpoena. He was indicted last Friday on two counts of criminal contempt — one for refusing to appear for a congressional deposition and the other for refusing to provide documents in response to the committee’s subpoena.
Schoen said that if Bannon had turned over the documents the committee wanted, then the “genie is out of the bottle and it can’t be put back in.”
He added that the other attorney asked that if Bannon were to appear before the committee, then a representative of Trump, the reported privilege holder, should be present to invoke privilege on a question-by-question basis. However, Schoen said, the committee refused that.
Schoen also disagreed with Keilar when she said the former president hasn’t yet formally invoked executive privilege with the committee.
“This is how privilege is invoked,” said Schoen. “The privilege holder identifies and communicates with the person who has been directed to provide what he believes to be his privileged information, and that person acts accordingly.”
The attorney went on to say that Bannon also should not be criminally prosecuted and that Trump can still invoke executive privilege, using a case involving the late President Richard Nixon as precedent.
In response, Keilar said that some of the Jan. 6 committee’s inquiries pertain to conversations Bannon had with people like Rudy Giuliani and Bernie Kerik who cannot claim executive privilege.
“This comes up regularly when privilege is at issue in depositions,” Schoen responded. “Here, (with) Mr. Bannon, there could be questions asked that have to do with privileged areas and not privileged areas.”
He also knocked the fact that Democrats dominate the Jan. 6 committee, and that the two Republicans sitting on the panel are vocal opponents of the former president and his administration.
“The American people deserve a fair and open-minded investigation in a matter this serious, not a committee made up of people exclusively who have prejudged the issue,” Schoen said. “That’s not an investigation.”