Executive Privilege v. Witness Tampering
Under Trump’s direction, Steve Bannon is refusing to comply with the 1/6 Committee’s subpoena. Bannon claims (as Trump told him to do) the documents and testimony sought are protected by “executive privilege.”
Let’s talk about executive privilege a bit. It is a very limited doctrine, based on separation of powers, saying that the executive cannot be compelled to produce that which would interfere with his executive functions.
We very quickly have an obvious problem here. Trump is not the executive. Biden is. The privilege of executive privilege belongs to Biden not Trump. Private citizen Trump cannot invoke executive privilege. Private citizen Trump has no executive functions to be interfered with.
But let’s move past that. Let’s suppose a court accepts an argument no court ever has before. That in order for a President to get forthright advice, even at the end of this term, his executive branch subordinates and advisors must be able to give advice free of the concern that they will be compelled to testify about it later.
Even assuming that, we now have a MUCH bigger problem. Steve Bannon was NOT in the executive branch for the period for which the documents and testimony is sought. Bannon left the Trump Administration in August 2017. After that he was, and remains, a private citizen. Even if Trump were still President there would be no credible claim of executive privilege related to the discussions of a private citizen with the President.
So we have a private citizen, trying to say that someone, who was at all relevant times, also a private citizen, invoking “executive privilege” for that private citizen witness? It’s absurd. No court will accept this. It’s beyond frivolous.
What do we have if one private citizen tires to persuade another private citizen to not testify? What we have is witness tampering by Trump. From 18 U.S.C. § 1512:
“(b)Whoever knowingly . . . corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to —
(1)influence, delay, or prevent the testimony of any person in an official proceeding;
(2)cause or induce any person to —
(A)withhold testimony, or withhold a record, document, or other object, from an official proceeding . . .
shall be fined under this title or imprisoned not more than 20 years, or both.”
It should be noted that Trump made sure Bannon owed him. When Bannon was indicted for stealing from naive Trumpers who donated to Bannon’s “Build The Wall” campaign, Trump pardoned him before there was even a trial. This is nothing short of corrupt persuasion to not testify and Trump should be prosecuted for it.
The cover up of what happened on 1/6 should appall all Americans, no matter their political views.