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The dispute between Trump’s and Bannon’s legal teams

Stephen K. Bannon is seen on the screen as the House Jan. 6 select committee holds its third public hearing in June. (Jabin Botsford/The Washington Post)

When we learned this weekend that Donald Trump adviser Stephen K. Bannon was suddenly willing to testify to the Jan. 6 committee, a big and obvious question was: why? The most logical answer seemed to be that Bannon is set to go on trial next week for his previous refusal to testify and turn over documents, and this was a last-minute attempt to try averting a conviction. Another would be that Trump wants Bannon to go to bat for him, having grown weary of the largely unrebutted evidence against him presented by the committee.

But a new court filing in the Bannon saga further reveals something intriguing: a dispute between his and Trump’s legal teams.

In the filing, federal prosecutors disclosed that they recently interviewed Trump lawyer Justin Clark. They say Clark confirmed something prosecutors have long argued and that some close watchers have suspected — that Trump never actually invoked executive privilege with regard to specific things (emphasis added):

On June 29, 2022, former President Donald Trump’s attorney, who sent the letter on which the Defendant claimed his noncompliance was based, confirmed what his correspondence has already established: that the former President never invoked executive privilege over any particular information or materials; that the former President’s counsel never asked or was asked to attend the Defendant’s deposition before the Select Committee; that the Defendant’s attorney misrepresented to the Committee what the former President’s counsel had told the Defendant’s attorney; and that the former President’s counsel made clear to the Defendant’s attorney that the letter provided no basis for total noncompliance in the first place.

While Clark is not named in the filing, the letter cited is obviously his Oct. 6 letter to Bannon’s lawyer, Robert J. Costello. And Costello is the “Defendant’s attorney” that the government claims misrepresented the Trump legal team’s position, also citing Clark’s interview as confirmation for that.

The filing further reinforces a dispute over Bannon’s initial claim that Trump had invoked executive privilege, which Trump said this weekend he is now willing to waive. There were multiple signs that the claim wasn’t all it was cracked up to be — at least in the Trump team’s estimation — and now Clark seems to have confirmed as much.

Prosecutors didn’t detail Clark’s interview, except to characterize it as confirming its position about the Bannon legal team’s claims. But Costello fired back Monday.

“I haven’t misrepresented anything,” Costello told The Washington Post. “Clark’s statements are internally inconsistent.”

A judge on Monday ruled that Bannon could not use executive privilege as a defense.

The dispute dates back to when the Jan. 6 committee was seeking Bannon’s testimony in October.

In the Oct. 6 letter, Clark instructed Bannon to “where appropriate, invoke any immunities and privileges he may have from compelled testimony in response to the Subpoena.” He also instructed Bannon not to produce any privileged documents or testimony.

But notably, the letter didn’t lay out what, in fact, was allegedly privileged. And what followed was apparently multiple attempts by Costello to get Trump’s legal team to be more specific — attempts that were apparently made in vain.

On Oct. 13, Costello wrote to Clark stating that the Jan. 6 committee didn’t regard the executive privilege claim as valid and urging Trump’s legal team to reach out to the committee.

“I would strongly suggest that a direct communication from you on behalf of President Trump would clarify the President’s position with respect to the document request and deposition requests,” Costello told Clark.

The same day, Costello sent the committee a letter stating that Clark had “informed us that President Trump is exercising his executive privilege.” He said that was why Bannon wouldn’t be producing testimony or documents.

On Oct. 14, the deadline for Bannon’s testimony lapsed. And that evening, Clark emailed Costello seemingly taking exception to how Costello had characterized the Trump legal team’s position the day before.

“To be clear, in our conversation yesterday I simply reiterated the same instruction from my letter to you dated Oct. 6, 2021, and attached below,” Clark said.

This apparently angered Costello, who quickly forwarded Clark’s email to Bannon and others and said Clark’s apparent objection was “not accurate.”

“He definitely stated that Trump was invoking the executive privilege,” Costello wrote. Costello added: “I don’t know what game Clark is playing but it puts Steve Bannon in a dangerous position. Beware.”

Two days later, on Oct. 16, Clark followed up with more explicit instructions. And crucially, he stated that the position of Trump’s legal team was that Bannon did not have immunity from testifying. Clark made it clear that Bannon’s legal team was free to make its own determination, but suggested that it shouldn’t cite Trump’s legal team for the claim.

“Just to reiterate, our [Oct. 6] letter referenced below didn’t indicate that we believe there is immunity from testimony for your client,” Clark wrote. “As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.”

In addition to the emails, the Justice Department in a November recap of an interview with Costello summarized Clark’s unwillingness to go to bat for Bannon’s privilege claims:

COSTELLO asked CLARK to reach out to the Select Committee and to directly express to the Select Committee what COSTELLO and BANNON were confused about in regards to Executive Privilege. COSTELLO estimated he requested this of CLARK approximately two or three times, however, CLARK did not reach out to the Select Committee.
CLARK would not identify for COSTELLO what would be covered under Executive Privilege and that CLARK left that determination up to those who had received the Select Committee subpoena. CLARK also refused to reach out to the Select Committee on behalf of COSTELLO or BANNON.

The timing here is key. All of this was happening around Bannon’s deadline for testifying — Oct. 14. Costello cited the Oct. 6 letter and another communication on Oct. 13 as validating Bannon’s noncompliance. But after the deadline lapsed, Trump’s legal team on Oct. 16 explicitly stated that their view was that Bannon didn’t have immunity from testifying and undermined his lawyer’s executive privilege claims. The following week, the House voted to hold Bannon in contempt of Congress. He was indicted in connection with it on Nov. 12.

A key question is why Trump’s legal team wouldn’t do more to back up Bannon’s claims. Over at Lawfare, Roger Parloff theorizes that it refused to do so for self-serving reasons:

One possibility is that — as a matter of shielding Trump from political or even criminal liability — he wanted to distance Trump from whatever Bannon and his cohorts were up to at the Willard Hotel [on Jan. 6]. Unambiguously asserting executive privilege over those communications would tend to admit that the people at the Willard Hotel were acting for Trump in some way.

Trump’s legal team has argued that it handled Bannon’s executive privilege claims similarly to many other aides and advisers who were called to testify. But regardless, Bannon’s team clearly wanted more — and didn’t get it. What it got instead were warnings that it was going too far in leaning on what little the Trump team gave it.

Costello was obviously frustrated by this, as his comment Monday about how Clark’s “statements are internally inconsistent” reinforces. (An attorney for Clark declined to comment.) Costello moved to withdraw from representing Bannon last week, citing his status as a witness in the case.

Costello also disputed that Trump hadn’t specifically invoked executive privilege, referring to Trump’s letter this weekend saying he would withdraw his claim to executive privilege.

“Read President Trump’s recent letter stating that he did invoke executive privilege with respect to Bannon,” Costello said.

There’s a valid distinction at play between whether Trump didn’t invoke executive privilege at all or simply didn’t invoke it as specifically as Costello would have liked. The filing Monday merely says Clark confirmed Trump hadn’t invoked it “over any particular information or materials.” But notably, Costello, in his Oct. 14 email, seemed to believe Trump’s legal team had indeed disputed that it had invoked executive privilege as had been claimed — and that Clark was “playing” a “game” that “puts Steve Bannon in a dangerous position.”

Bannon is now immersed in that dangerous position, especially with his executive privilege defense out the window. And if Trump does want Bannon to go to bat for him in public hearings, this dispute certainly looms in the background.

This post has been updated with Monday’s ruling.