A federal judge has ordered the Justice Department to produce internal records related to its decision to prosecute Steve Bannon, a win for the former Trump adviser, who maintains that he had a sound legal basis for refusing to comply with a subpoena from the House’s Jan. 6 select committee.
U.S. District Court Judge Carl Nichols said Bannon’s team should be provided with Justice Department “statements or writings” that square the decision to charge Bannon with contempt of Congress with long-standing department legal opinions that say former presidential advisers are largely immune from congressional subpoenas.
Prosecutors had argued during a two-hour hearing that the Justice Department’s legal guidance, reflected in opinions issued by its Office of Legal Counsel, were not relevant to whether Bannon actually committed the contempt-of-Congress crimes he’s charged with. But Bannon’s lawyers have emphasized that they advised him repeatedly not to comply with the congressional subpoena because the department’s policy rendered the subpoena invalid.
Nichols raised a hypothetical scenario in which Congress subpoenaed Ron Klain, the chief of staff to President Joe Biden. Klain, he said, could refuse to appear, citing published OLC opinions that say senior presidential advisers are “absolutely immune” from compelled congressional testimony. But under the Justice Department’s argument in the Bannon case he noted, Klain could be prosecuted anyway — creating a conflict between the department’s internal policies and its prosecution decisions.
“Those two positions would be held at the same time,” said Nichols.
The documents the Justice Department provides could shed light on how it tried to square that inherent conflict, or whether it has issued subsequent, nonpublic legal guidance that would permit prosecuting Bannon for defying the select committee.
OLC opinions limiting Congress’ ability to demand testimony from executive branch officials have been crucial roadblocks to lawmakers for decades, even though they carry no formal legal weight. Trump deployed them repeatedly to derail investigations into his effort to press Ukraine for investigations of his political rivals, as well as his handling of the special counsel investigation of Russian interference in the 2016 election. Those opinions remain on the books, though superseding opinions might have been issued under Biden that have not been publicly disclosed. Nichols’ order requires the Justice Department to produce those documents to Bannon, “public or not.”