Steve Bannon, the onetime strategist to Donald Trump who was involved in the former president’s efforts to invalidate his defeat in the 2020 election, has opened discussions with the House January 6 select committee about testifying to the inquiry into the Capitol attack.
The move by Bannon gives the select committee a prime opportunity to gain insight into the inner-workings of Trump’s unlawful push to stop the certification of Joe Biden’s election win even as it amounts to a final gambit days before he goes to trial for contempt of Congress.
Bannon signalled in an email to the select committee, first obtained by the Guardian, that he was prepared to initiate discussions about a time and place for an interview, after Trump said in a letter he would waive executive privilege if he reached an agreement to testify.
The email broadly reiterated Bannon’s legal defense that he was previously unable to comply with a subpoena from the panel because at the time, in a claim that has been disputed, the former president had asserted executive privilege over his testimony.
But with Trump now willing to waive executive privilege if Bannon and the select committee could secure an arrangement, Bannon was in a position to initiate negotiations about a potential interview, the email said, citing the letter from the former president.
The email specifically said it was Bannon’s preference to testify at a public hearing, but it is understood that Bannon would consider a closed-door, transcribed interview and that he also intends to comply with the document requests in his subpoena from last year.
The executive privilege arguments advanced by Bannon and his lawyers have been suspect, principally because at least some of what the select committee demanded in his subpoena were for matters not related to Trump and therefore not covered by the protection.
And while Bannon has pointed to a letter from Trump attorney Justin Clark as proof that the former president asserted executive privilege, a follow-up email from Clark showed Trump’s legal team expressly did not think Bannon had “immunity” from the investigation.
Bannon’s lawyer, Robert Costello, also said in an interview with the FBI and the US attorney’s office for Washington DC that he believed ten of the 17 items requested in the subpoena were subject to executive privilege, leaving seven that were not.
The seven remaining items identified by Costello as not protected included discussions he said were protected by attorney-client privilege – though that privilege would have been “broken” since non-lawyers participated and because of things in the public domain, including podcasts.
Since the subpoena compelled Bannon to produce what Costello believed to be both privileged and non-privileged items, Bannon should have produced at the very least the non-privileged materials instead of simply ignoring his subpoena in its entirety.
The US justice department said in an overnight court filing Monday that that analysis was shared by Trump’s lawyer, who told the FBI in an interview on 29 June that Trump never asserted privilege over specific materials and that he did not believe Bannon had immunity from the investigation.
The justice department also said in the filing that Bannon’s lawyer “misrepresented to the committee what the former president’s counsel had told the defendant”. Prosecutors added that Bannon’s offer to cooperate was insincere because he still has not produced any documents.
Bannon has nonetheless argued that executive privilege was at the heart of his original subpoena non-compliance, saying he did not have to be a White House employee – which he was not for January 6 – to be a “close presidential advisor” subject to executive privilege.
He has also argued that while the DC circuit court has said a current president’s waiver for executive privilege overrules a former president’s assertion, Biden never formally waived Trump’s assertion. In fact, the select committee didn’t believe Trump asserted it in the first place.
Speaking on CNN’s State of the Union on Sunday, January 6 committee member and congresswoman Zoe Lofgren said she anticipated the panel would schedule an interview with Bannon.
“I expect that we will be hearing from him,” Lofgren said. “And there are many questions that we have for him.”
It was not clear on Sunday as to the extent or scope of Bannon’s potential testimony, though he was a witness to several key moments in the illicit effort on 6 January to stop the certification of Biden’s election win.
That would mean Bannon could, in theory, reveal to House investigators about his conversations with Trump ahead of the Capitol attack – Bannon spoke with Trump on the phone the night before – and strategy discussions at the Trump “war room” at the Willard hotel in Washington.
The Trump “war room” at the Willard played a major role in the former president’s push to stop the certification. Bannon was based there in the days before the attack, alongside Trump lawyers John Eastman and Rudy Giuliani, widely seen as the architects of that scheme.
Bannon’s offer to testify appears to be a strategic move ahead of his trial for criminal contempt of Congress, scheduled to start on 18 July, that comes after justice department prosecutors charged him for refusing to comply with the select committee’s subpoena last year.
The move to testify to the panel now would not “cure” his contempt since he faces criminal contempt and the prosecution is for the past failure to comply with the subpoena, according to former US attorney Joyce Vance.
But the email offering to testify could have the effect of reinforcing his legal defense that Trump did in fact assert a legitimate executive privilege claim in October 2021, and that he cannot be prosecuted because of that invocation, according to his letter on Saturday.
The offer to testify – and an actual agreement where he appears before the select committee – could also serve to defang the prosecution to some extent, making it a less attractive case for the justice department to pursue and one generally less appealing to jurors.
Regardless of what Trump now says in his letter, and in referring Bannon for prosecution, the select committee has maintained that Trump did not assert executive privilege – and even if he did, it did not cover Bannon, who was out of the Trump White House by 6 January.
The select committee has also said that Bannon was required to respond to the subpoena in some way, for instance by citing executive privilege on a question-by-question basis, and at least responding to questions that had nothing to do with Trump.
Bannon became one of two former Trump advisers charged by the justice department for contempt of Congress. Federal prosecutors also charged Peter Navarro but declined to prosecute the former White House chief of staff, Mark Meadows, and the deputy chief, Dan Scavino.
