We sometimes hear that the Republican House voted to hold Obama’s Attorney General Eric Holder in contempt of Congress for refusing to turn over documents relating to a botched operation to get illegal guns off the street. Fast and furious was the stupid name of the bungled operation. The Democratic House also voted to hold Trump’s AG Bill Barr in contempt of Congress. Neither of these AGs were ultimately prosecuted, since the DOJ has a policy against bringing charges against a sitting AG (of course they do…). Even though Barr advised Trump to assert a blanket protective executive privilege (that doesn’t actually exist in the law) that allowed him, as the court cases an appeals slowly proceeded, to block all testimony and document production by all subpoenaed witnesses until the clock was run out (see Don McGahn) and the testimony became meaningless.
I learned that Holder had voluntarily appeared nine times in connection to the long probe into Fast and Furious. He spent hours answering questions, on nine different occasions. That’s how Republicans play — you keep the Benghazi tragedy in front of the American people in probe after probe. Contempt, clearly, can be employed for partisan ends. But what of the clear cut cases?
Trump told his January 6 co-conspirators to dummy up, refuse to obey the legal subpoenas of congress, citing the same fanciful Barr-created doctrine of absolute, perpetual protection against anything that could incriminate a (former) president. When Bannon told Congress to fuck off he had not even a fig leaf of an excuse for his refusal to appear, it was pure, undisguised contempt. Bannon’s opinion is that the Democrats in Congress are illegitimate weaklings who will only prove his point about what a spineless group they are and you can hear him hammer this point home day after day on his podcast The War Room.
The appeal of federal Judge Tanya Chutkan’s ruling that the former president may not assert executive privilege, if the sitting president does not assert it, and particularly if Congress has a compelling need for the testimony and documents, will be heard on Tuesday. Compare this quick hearing to the two year tap dance McGahn and his legal team performed to stall his testimony until it was irrelevant. Yeah, in the end he quietly admitted Trump had ordered him to obstruct justice by firing Mueller, and when he refused, to create a false document stating that Trump had not ordered him to do so, but Trump had already been robbed of his rightful reelection by the time McGahn admitted his former boss had instructed him to obstruct justice, and then lie about it, behind closed doors and not under oath.
Executive privilege may be invoked by members of the administration, the purpose of the privilege is to shield legitimate deliberations about lawful decisions the president makes every day, so there is an argument that it may apply to a then-member of the DOJ like American Eichmann Jeffrey Clark (as a defense against answering certain questions), or Tea Party extremist, Trump loyalist and January 6 co-conspirator (complete with burner phone) and Mark Meadows. Both were in the Trump administration, hard at work thinking outside the box during the Stop the Steal madness leading up to the planned, but permit-free, march to and assault on the Capitol.
Bannon, however, had not been a member of the administration for several years, not since August 2017, prior to whipping up his audience with the Big Lie and later sitting in the war room/January 6 command center at the Willard Hotel. John Eastman was also not in the administration. Same goes for Rudy Giuliani, Bernard Kerik and several other right-wing luminaries who are poised to show their contempt of Congress, in an act of supreme loyalty to their leader.
Rule of law? Nation of laws? No privilege, not executive privilege, not attorney-client privilege may be successfully invoked to cover up planned illegal activities. There is no privilege that shields participants in a criminal conspiracy. We will see shortly what the appellate panel has to say about Trump’s latest frivolous attempt to weaponize the delay in the legal system to run out the clock, obstruct justice, and protect himself from criminal prosecution. Very exciting.