Former White House strategist Stephen Bannon doesn’t plan to comply with a subpoena from the committee investigating the Jan. 6 attack on the Capitol following reports former President Trump advised him and three other former aides to buck lawmakers’ orders.
Thursday at midnight was the deadline for Bannon and former chief of staff Mark Meadows to comply with subpoenas sent on Sept. 23.
The committee also sent subpoenas to Dan Scavino, Trump’s deputy chief of staff for communications, and Kashyap Patel, the chief of staff to then-acting Defense Secretary Christopher Miller and a former House and White House staffer.
Bannon alerted the committee he did not plan to comply with the subpoena, a detail first reported by CNN. Meadows also responded to the committee, but the nature of his response was unclear, the outlet reported.
A copy of Bannon’s letter to the committee obtained by The Hill references a threat from Trump’s lawyers earlier this week to challenge the subpoenas.
“We must accept his direction and honor his invocation of executive privilege. As such, until these issues are resolved, we are unable to respond to your request for documents and testimony,” Robert Costello, Bannon’s attorney, wrote in the letter.
“We will comply with the direction of the courts.”
A statement from the committee implies some degree of cooperation from Meadows and Patel but warned Bannon against hanging his hat on a suit that has yet to be filed.
“While Mr. Meadows and Mr. Patel are, so far, engaging with the Select Committee, Mr. Bannon has indicated that he will try to hide behind vague references to privileges of the former President. The Select Committee fully expects all of these witnesses to comply with our demands for both documents and deposition testimony,” Chair Bennie G. Thompson (D-Miss.) and Vice Chair Liz Cheney (R-Wyo.) said in a joint statement.
“Though the Select Committee welcomes good-faith engagement with witnesses seeking to cooperate with our investigation, we will not allow any witness to defy a lawful subpoena or attempt to run out the clock, and we will swiftly consider advancing a criminal contempt of Congress referral,” they wrote, adding that the committee “will not be deterred by those who seek to obstruct our efforts.”
A spokesman for Meadows declined a request from The Hill seeking clarification on his response to the committee.
The committee has reportedly been unable to locate Scavino to serve him with a subpoena.
According to a letter reviewed by Politico on Thursday, Trump told his former aides he would challenge the order in court, arguing they are a violation of executive privilege, which can shield White House employees from testifying before Congress.
“President Trump is prepared to defend these fundamental privileges in court,” the letter stated.
Speaking with reporters late last month, Rep. Jaime Raskin (D-Md.) expressed doubts that Trump would be able to prevail in court, calling the former president’s argument “so off-base.”
“First of all, the executive privilege applies to a sitting president, not former presidents, because the focus is on the national security interests of the country. It’s a very limited doctrinal privilege,” he said.
“In any event, even if the court were to weigh the public’s overwhelming interest in getting at the truth of events, versus the interest in national security, in this case both factors are on the side of disclosure. The public has an interest in knowing everything about the attack on our democracy, and that truth-seeking function will improve national security. So national security argues for disclosure, not for secrecy.”
Even if the Trump camp does try to assert executive privilege, it’s not clear why such an argument would cover Bannon. While Bannon worked at the White House in the months after Trump was inaugurated, he was later dismissed. He was subpoenaed due to his involvement in planning for the rallies on Jan. 6, well after his White House career.
Trump’s deadline for filing a suit to assert executive privilege is quickly approaching. If the four men don’t show up for a deposition by the mid-October deadline they could face criminal charges.
“When Trump inevitably files his lawsuit to prevent witnesses from cooperating with the Jan. 6 [committee], he does not expect to win. He only wants to delay until it’s too late,” Daniel Goldman, majority counsel for the first impeachment inquiry into Trump, wrote on Twitter.
Asked whether Biden would direct the Department of Justice to prosecute criminal contempt referrals from the Jan. 6 committee, White House press secretary Jen Psaki told reporters Friday that it would be up to DOJ to make that decision, citing the agency’s independence.
“They’re independent. They would determine any decision on criminal prosecutions,” Psaki said.
The four men were subpoenaed due to a variety of issues.
“You have been identified as present at the Willard Hotel on Jan. 5, 2021 during an effort to persuade members of Congress to block the certification of the Election the next day, and in relation to other activities on Jan. 6,” the committee wrote in the letter to Bannon.
“You are also described as communicating with then-President Trump on Dec. 30, 2020, and potentially other occasions, urging him to plan for and focus his efforts on Jan. 6. Moreover you are quoted as saying, on Jan. 5, 2021, that ‘[a]ll hell is going to break loose tomorrow.’”
For Meadows, the subpoena largely centers on his involvement with Trump efforts to pressure DOJ to investigate various voter fraud claims as well as his coordination with leaders of Women for America First, who organized the Jan. 6 rally outside the White House.
Morgan Chalfant and Scott Wong contributed. Updated at 4:06 p.m.